
    GUS TALKINGTON et al. v. STATE.
    No. A-2810.
    Opinion Filed October 5, 1918
    (175 Pac. 132.)
    1. ABATEMENT OF PROSECUTION — Death of Defendant. In a criminal action, the imrpose of the proceeding being to punisli the defendant in person, the action must necessarily abate upon his death: and where it is made to appear, that the plaintiff in error has died, pending the determination of his appeal, the cause will be abated.
    2. APPEAL AND ERROR — Acceptance of Parole — Dismissal. Where a plaintiff in error accepts a parole pending the determination of his appeal, he thereby waives the right to have his appeal determined; and, when the attention of the court shall be called judicially to the fact that a parole has been granted and accepted, the appeal will be dismissed.
    
      Appeal from District Court, Carter County; W. F. Freeman, Judge.
    
    
      Steve Talkington and Gus Talkington were convicted of violation of the prohibitory law, and appeal. Abated as to Steve Talkington, and dismissed as to Gus Talkington.
    
      James H. Mathers and Wm. Pfeiffer, for plaintiffs in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiffs, in error, Steve and Gus Talkington, were tried and convicted on an information jointly charging that they did keep and maintain a place, known as the Owl Cafe in the town of Wirt, Carter county, with the unlawful and felonious intention and purpose of then and there and therein selling, bartering, giving away, and otherwise furnishing to other persons intoxicating liquors, and did then and. there and therein keep and maintain fixtures, appliances, and a supply of such liquors for and with such felonious intention and purpose. The jury by their verdicts assessed the punishment of the defendant Steve Talkington at confinement in the penitentiary for a period of two years and a fine of $1,000, and the punishment of Gus Talkington at confinement in the county jail for one month and a fine of $100. From the judgments rendered on the verdicts an appeal was perfected.

Since the appeal was taken, and before the final submission of the cause, suggestion of the death of the plaintiff in error Steve Talkington has been made. In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore adjudged and ordered that all proceeding in this action be abated as to plaintiff in error Steve Talkington, with direction to the district court of Carter county to enter an order to that effect.

The Attorney General has also called to the attention of the court the fact.that plaintiff in error Gus Talkington has been granted'a parole by the Governor, which has been duly accepted by him. Where a plaintiff in error accepts a parole pending the determination of his appeál, he thereby waives the right to have his appeal determined; and, when the attention of the court shall be called judicially to the fact that a parole has been granted and accepted, the appeal will be dismissed. Odom v. State, 8 Okla. Cr. 540, 129 Pac. 445.

It is therefore ordered that the appeal of the plaintiff in error Gus Talkington in this case be, and the same is hereby, dismissed.

ARMSTRONG and MATSON, JJ„ concur.  