Kincheloe v State

Kincheloe v State
1919 OK CR 296
184 P. 602
16 Okl.Cr. 717
Decided: 10/29/1919
Oklahoma Court of Criminal Appeals

Appeal from District Court, Carter County; W.F. Freeman, Judge.

J.F. Kincheloe was convicted of forgery, and he appeals. Proceedings abated.

A. Eddleman and J.C. Thompson, for plaintiff in error.

W.C. Hall, Asst. Atty. Gen., for the State.

PER CURIAM. Plaintiff in error, J.F. Kincheloe, was convicted of forgery, and his punishment fixed at 18 months in the penitentiary. From 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.F. 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.