
    WALTER ZAIONC v. STATE.
    No. A-4848.
    Opinion Filed Jan. 6, 1925.
    (231 Pac. 897.)
    (Syllabus.)
    Appeal and! Error — Prosecution Abated upon Death of Accused. In a criminal action, the purpose of the proceedings being to punish the defendant in person, the action must necessarily abate upon his death.
    Appeal from District Court, Pittsburg County; Harve L. Melton, Judge.
    Walter Zaionc was convicted of assault with intent to kill, and he appeals. Order that proceedings abate.
    Counts & Counts, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, Walter Zaionc was convicted on an information charging that he did shoot at one W. J. Price with a gun with the intent to kill the said Price, and his punishment fixed at imprisonment in the penitentiary for the term of one year and one day. From the judgment rendered on the verdict he appealed by filing in this court September 8, 1923, petition in error with case-made.

Since the appeal was taken, and before the final submission of the cause, suggestion of the death of the plaintiff in error has been made in the form of an affidavit of his counsel of record, wherein it is averred that the said Walter Zaionc was killed in an automobile accident in Latimer county on the 2d day of March, 1924.

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 considered, adjudged, and ordered that the proceeding in this cause, and especially under the judgment appealed from, has abated, and that the district court of Pittsburg county enter its appropriate order to that effect.  