Martin v. State

1927 OK CR 338, 260 P. 780, 38 Okla. Crim. 309, 1927 Okla. Crim. App. LEXIS 329

Opinion

DOYLE, P. J.

The_plaintiff in error, Henry Martin, was convicted of manslaughter in the first degree, and his punishment assessed at imprisonment in the penitentiary for the term of 25 years upon an information charging that in Garvin county, on the l'8th day of September, 1926, he did kill and murder one George Carlton by shooting him with a Winchester rifle. From the judgment rendered on the verdict on the 2d day of May, 1927, an appeal was perfected by filing in this court on October 31st a petition in error with case-made.

Since the appeal was taken, the plaintiff in error departed this life, as shown by the motion of his counsel of record averring “the fact that Henry Martin, the plaintiff in error, was shot and instantly killed in Pauls Valley, Okla., November 2, 1927,” which motion is duly verified.

In a criminal prosecution, the purpose of the proceedings being to punish the accused, the action must necessarily abate upon his death, :and, where it is made to appear that the plaintiff in error has died pending the determination of the appeal, the cause will be abated.

It is therefore considered, adjudged, and ordered that the proceedings in the above-entitled cause do abate; ■cause remanded, with direction to the trial court to enter its appropriate order to that effect.

EDWARDS and DAVENPORT, JJ., concur.