
    STATE of Missouri, Plaintiff-Respondent, v. Ernest W. LEE, Defendant-Appellant.
    No. 11217.
    Missouri Court of Appeals, Southern District, En Banc.
    April 25, 1979.
    
      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    John B. Newberry, Springfield, for defendant-appellant.
   TITUS, Judge.

According to the notice of appeal, defendant Ernest W. Lee was convicted of rape, a felony as provided by § 559.260, V.A.M.S. On October 16, 1978, he was sentenced by the Circuit Court of Greene County and admitted to bail. By a certified copy of the Certificate of Death of the Missouri Division of Health, we are advised that defendant died March 16, 1979, while his appeal was pending in this court.

Because defendant expired before the crime charged was finally determined, the prosecution against him wholly abated and there was no conviction of him in the cause. As a result thereof, this court is without a viable cause and the appeal is hereby dismissed. State v. Macklin, 560 S.W.2d 69, 70 (Mo.App.1977), and cases there cited.

The appeal is ordered dismissed.

HOGAN, BILLINGS, MAUS and GREENE, JJ., concur.

FLANIGAN, C. J., concurs in result and files opinion.

FLANIGAN, Chief Judge

(concurring in result).

Although I concur in the result, I do not believe the issuance of a formal opinion is necessary. An order of dismissal would serve the purpose.  