An appeal from the District Court of McIntosh County; Robert J. Bell, Judge.

James Riley Johnson was convicted of the offense of Rape in the First Degree, and appeals. Appeal abated.

Kenneth W. Lackey, Eufaula, Gene Stipe, McAlester, for plaintiff in error.

Austin O. Webb, McIntosh County Atty., for defendant in error.

BUSSEY, Judge.

¶1 James Riley Johnson was tried and convicted for the offense of Rape in the First Degree, in the District Court of McIntosh County, Oklahoma on the 23rd day of March 1963, the Jury found him guilty and assessed his punishment at Fifteen (15) Years in the State Penitentiary at McAlester, Oklahoma.

¶2 Thereafter, on the 5th day of July, 1963, Petition in Error with casemade attached was duly filed in this Court, and on the 1st day of April, 1964, this matter was set for Oral Argument. Thereafter, it having been made to appear to the Court that James Riley Johnson expired as the result of an automobile accident, we are of the opinion that the above styled and numbered cause should be, and the same is hereby abated.

¶3 This Court has previously held that; when during the pendency of an appeal it is affirmatively made to appear to the Court that the plaintiff in error has expired, it is the duty of the Court to enter an Order abating said appeal.

¶4 It is so ordered.

¶5 Appeal abated.

JOHNSON, P.J., concurs.

NIX, J., not participating.