State v. Clark-Kotarski

Annotate this Case

486 P.2d 876 (1971)

STATE of Montana, Plaintiff and Respondent, v. Daniel R. CLARK-KOTARSKI, Defendant and Appellant.

No. 11795.

Supreme Court of Montana.

Decided March 1, 1971.

Rehearing Denied June 7, 1971.

William Taylor (argued) Deer Lodge, Greogory H. Warner, Great Falls, for defendant-appellant.

Patrick J. Brophy (argued) Helena, Robert Woodahl, Helena, J. Fred Bordeau, Great Falls, for plaintiff-respondent.

ORDER

PER CURIAM:

Respondent State of Montana filed herein a motion to dismiss the appeal of the defendant on the ground that the appellant-defendant is now deceased, having suffered a cardiac arrest at the Montana State Prison on November 15, 1970.

Counsel for the deceased defendant filed objections to the motion and this Court set the motion for hearing, at which hearing counsel for respondent and appellant appeared and argued for and against the motion.

We have several times held that the death of a convicted person pending his *877 appeal, abates the appeal. This Court stated in State v. Lawrence, 122 Mont. 277, 201 P.2d 756, that in a criminal prosecution the object is to enforce the criminal law and punish the person found guilty of its violation and that the almost universal rule is that the death of the person pending an appeal from a judgment of conviction abates the appeal. See, also, State v. Pichette, 125 Mont. 327, 237 P.2d 1076; State v. Hale, 128 Mont. 116, 270 P.2d 993; State v. Koble, 129 Mont. 605, 285 P.2d 837.

While counsel for the deceased defendant urges us to change these rulings we see no reason to do so.

The motion to dismiss should be, and it hereby is, granted and this appeal is dismissed.