Zackie v State

Zackie v State
1919 OK CR 45
178 P. 271
15 Okl.Cr. 480
Decided: 02/15/1919
Oklahoma Court of Criminal Appeals

ABATEMENT OF PROSECUTION Death of Accused.

Appeal from Superior Court, Creek County; Gaylor R. Wilcox, Judge.

A. Zackie was convicted of a violation of the prohibitory liquor law, and he appeals. Order that proceedings abate.

Harris, Howard & Nowlin, for plaintiff in error.

The Attorney General, for the State.

PER CURIAM. The plaintiff in error, A. Zackie, was convicted at the May term of the superior court of Creek county, sitting at Drumright, on an information charging the possession of intoxicating liquors with intent to sell the same, and in accordance with the verdict of the jury was sentenced to be confined for two months in the county jail and to pay a fine of $500. From the judgment rendered on May 16, 1918, an appeal was attempted to be taken by filing in this court on November 13, 1918, a petition in error with case-made.

Page 481

Counsel for plaintiff in error has filed a motion to abate, supported by the affidavit of Gaylor R. Wilcox, the trial judge, showing that on the 3rd day of December, 1918, said plaintiff in error, A. Zackie, departed this life at Drumright.

In a criminal prosecution the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death, and, where it is made to appear to this court that plaintiff in error has died pending the determination of his appeal, the case will be abated.