Plaintiff in error, Steve Talkington, was convicted in the district court of Carter county upon an information charging that he did feloniously keep and maintain a place for the sale of intoxicating liquors in the town of Wirt, Carter county, March 1, 1917, and in accordance with the verdict of the jury, he was sentenced to be imprisoned in the state penitentiary at McAlester for the term of two years and to pay a fine of $500, from which judgment he appealed by filing in this court on August 8, 1917, a petition in error with case-made.
On October 24, 1917, the Attorney General filed a motion that the proceeding abate by reason of the death of the plaintiff in error, Steve Talkington. Attached to said motion was the affidavit of the sheriff of Carter county as follows:
"I, Buck Garrett, being first sworn, depose and say that I am sheriff of Carter county, Oklahoma, and have been for several years, and that I knew Steve Talkington well during his lifetime, and I know the Sunday that he was shot and killed by Bud Ballew in the town of Wirt, *Page 162 Carter county. I saw Steve Talkington after he was shot, and I know that he is now dead.
"BUCK GARRETT, "Sheriff of Carter Co., Okla."
Also the affidavit of Dr. W. Hardy, as follows:
"I, Dr. W. Hardy, being first sworn, depose and say that I knew Steve Talkington, during his lifetime, and I waited on him during his last illness, and I know him to be dead. I was with him at the time he died coming from Wirt, Carter county, to Ardmore, Oklahoma. The cause of his death was gunshot wounds and he died from said wounds. W. HARDY, M.D."
Which affidavits were duly subscribed and sworn to on the 22d day of September, 1917. In a criminal action the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore adjudged and ordered that all proceedings in this prosecution be abated by reason of the death of plaintiff in error, Steve Talkington.
The district court of Carter county is directed to enter its appropriate order to that effect.
ARMSTRONG and MATSON, JJ., concur. *Page 163