
    RANDOLPH TILLIS v. STATE.
    No. A-4136.
    Opinion Filed March 22, 1924
    (224 Pac. 207.)
    Appeal from District Court, Canadian County; James I. Phelps, Judge.
    Randolph Tillis was convicted of assault with a dangerous weapon, and he appeals.
    Remanded, with directions to abate.
    E. T. Barbour, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Randolph Tillis, was convicted in the district court of Canadian county on the 28th day of May, 1921, of the crime of assault with a dangerous weapon, and sentenced to serve a term of three years’ imprisonment in the state penitentiary at McAlester, Okla. Prom the judgment rendered against him, an appeal was taken to this court. Since the appeal was taken suggestion of the death of plaintiff in error has been made, and his counsel of record has filed, for this reason, a motion to abate. This motion is also supported by the affidavit of one J. T. Smith, who was a prosecuting witness against the plaintiff in error in the trial court, stating that he has been informed, and believes, that the plaintiff in error has since the taking of this appeal died, and that since he has been informed of the death of plaintiff in error the affiant has not seen plaintiff in error, who before his death was a resident of the city of El Reno, Okla., and that affiant has no doubt that the plaintiff in error, Randolph Tillis, is now dead. In a criminal prosecution, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore considered and adjudged that the proceedings in the above-entitled cause, and especially under the judgment therein rendered, do abate. It is so ordered, and the cause is remanded to the district court of Canadian county, with directions to enter an appropriate order to that effect.  