The plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of selling whisky to a minor, and his punishment fixed at confinement in the county jail for a period of 30 days and a fine of $50.
From the judgment of conviction the defendant appealed to this court. The appeal was perfected on September 17, 1930, by filing in this court his petition in error with case-made attached. Since the appeal was taken and before final submission of the cause, said defendant departed this life as shown by statement of the attorney of record for defendant. In a criminal prosecution, the purpose of the proceeding 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 his appeal, the cause will be abated. It is therefore ordered that the said cause do abate, with directions to the trial court to enter its appropriate order to that effect.
DAVENPORT and CHAPPELL, JJ., concur.