Kincheloe v. State

1919 OK CR 296, 184 P. 602, 16 Okla. Crim. 717, 1919 Okla. Crim. App. LEXIS 267

Opinion

PER CURIAM.

Plaintiff in error, J. F. • Kincheloe, was convicted of forgery, and his punishment fixed at 18 months in the -penitentiary. Shorn the judgment rendered on the verdict on the 20th day of September, 1917, an appeal was perfected.

The Attorney General has filed a motion that the proceedings abate by reason of the death of the plaintiff in error. Attached to said motion’ is the affidavit of the sheriff of Carter county, which, omitting .caption and jurat, is as follows: ..

“I, Buck Garrett, sheriff of Carter county, Oklahoma, being first’ duly sworn, upon oath depose and say that I knew J. F. Kincheloe during his lifetime, and I was present when he was convicted in the district court of Carter county, Oklahoma, and I know the said J. Fv Kincheloe to have died at Little Rock, Arkansas, while in the- service of the United States at Camp Pike. Arkansas”

—which affidavit was duly subscribed and sworn to on the 27th day of, October, 1919.

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 adjudged and ordered that all the proceedings in this prosecution be abated by reason of the death of the plaintiff in ei-’-or. The district court of Carter county is directed to enter its appropriate order to that effect.