
    TOM HERNDON v. STATE.
    No. A-3056.
    Opinion Filed November 16, 1918.
    (175 Pac. 842.)
    ABATEMENT OF PROSECUTION — Death of Accused ’ In a criminal prosecution, the purpose of the proceeding being 'to punish the defendant in person, the action must necessarily abate upon liis death; and where it is made to appear to the court that a plaintiff in error has died, pending the determination of ids appeal, the cause will 1)0 abated.
    
      Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.
    
    Tom Herndon was convicted of robbery, and he appeals.
    Prosecution abated.
    
      Preslie B. Cole, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Tom Herndon, was convicted of robbery, and in accordance with the verdict of the jury on the 13th day of February, 1917, was sentenced to be imprisoned in the penitentiary at Mc-Alester for the term of ten years. An appeal by case-made was perfected as that of a poor person, and he was committed to the penitentiary pending the determination of the appeal.

The Attorney General has filed a motion to abate, supported by the affidavits of Sam L. Morley, warden of the penitentiary, and E. M. Fry, as proof of the death of the plaintiff in error.

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 adjudged and ordered that all proceedings in this prosecution be abated by reason of the death of the plaintiff in error, Tom Herndon, and the district court of Pittsburg county is directed to enter its appropriate order to that effect.

ARMSTRONG and MATSON, JJ., concur.  