
    LIONEL SUTTER v. STATE.
    No. A-4351.
    Opinion Filed Dec. 27, 1922.
    (211 Pac. 91.)
    (Syllabus.)
    Appeal and Error — Dismissal—Acceptance of Pardon by Appellant.— When an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a pardon, and the same is granted, and the fact that a pardon has been granted is brought to the attention of- this court, the.appeal will be dismissed as having been abandoned.
    Appeal from District Court, 'Washington County; C. W. Mason, Assigned Judge.
    Lionel Sutter was convicted of assault with intent to kill, and he appeals.
    Appeal dismissed.
    Campbell & Ray and Leahy, Macdonald, Burnette & Files, for plaintiff in error.
   DOYLE, P. J.

Plaintiff in error, Lionel Sutter, was convicted of assault with a dangerous weapon with intent to kill, and his punishment fixed at five years in the penitentiary. On the 3d day of December, 1921, the court rendered judgment on the verdict. To reverse the judgment an appeal was perfected by filing in this court on May 20, 1921, a petition in error with case-made.

Counsel for plaintiff in error have filed a motion to dismiss the appeal herein on the ground and for the reason that on the 9th day of December, 1922, and pending the determination of this cause in this court, said appellant was granted a pardon for the offense of which he was herein convicted. A duly certified copy of said pardon was attached to said motion.

The uniform holding of this court is that when the pardoning power extends clemency and the same is accepted pending the determination of an appeal, the appeal will be dismissed, and when an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a pardon and the same is granted, and the fact that a pardon has been granted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.

It is therefore considered'and adjudged that tbe appeal herein be dismissed, and the cause remanded to the district court of Washington county.

MATSON and BESSEY, JJ., concur.  