(Syllabus.) Appeal and Error — Abatement of Cause upon Death of Appellant. In a criminal action, the purpose of the proceedings being to punish the defendant in person, the action must necessarily abate upon his death, and, when it is made to appear to this court that the plaintiff in error has died pending the determination of his appeal, the cause will be abated.
DOYLE, P.J.
Lee Kaufman was convicted in the county court of Kay county on a charge that he did unlawfully sell two drinks of whisky to one P.C. Copeland, and, in accordance with the verdict of the jury, was sentenced to pay a fine of $50 and to be confined in the county jail for 30 days. From the judgment rendered December 4, 1926, an appeal was perfected by filing in this court on February 18th, 1927, a petition in error with case-made. On May 15, 1928, the cause was submitted on briefs.
His counsel of record have filed a motion to abate the proceedings on the ground that plaintiff in error, Lee Kaufman, departed this life at Claremore on or about the 17th day of June, 1928, which motion is supported by the affidavit of Charles Jenkins, and a further showing that the motion and affidavit attached was duly served on the Attorney General and the county attorney of Kay county.
In a criminal action, the purpose of the proceedings being to punish the defendant in person, the action must necessarily abate upon his death.
It is therefore considered, ordered, and adjudged that the proceeding in this cause, and especially in the judgment appealed from, has abated, and that the county court of Kay county enter its appropriate order to that effect.
EDWARDS and DAVENPORT, JJ., concur.