
    FEBRUARY, 1919
    Rice Rutherford v. The State.
    No. 5281.
    Decided February 5, 1919.
    Assault to Murder—Death of Appellant—Abatement.
    Where, pending an appeal from a conviction of assault to murder, the appellant died and this was made to appear by affidavit filed with the record, the appeal is abated.
    Appeal from the District Court of Franklin. Tried below before the Hon. J. A. Ward.
    Appeal from a conviction of assault to murder; penally, five years imprisonment in the penitentiary.
    The opinion states the case. The clerk of the District Court of Franklin County made the affidavit.
    No brief on file for appellant.
    E. A. Berry, Assistant Attorney General, for the State.
   DAVIDSON, Presiding Judge.

This appeal is from a conviction for assault to murder, the punishment being assessed at a term in the penitentiary.

Pending this appeal appellant died. This is made to appear by affidavit filed with the record. Under the authorities the State’s motion to abate the appeal will be granted.

The appeal, therefore, is abated.

Abated.  