Plaintiff in error was convicted in the district court of McCurtain county of the crime of assault to do bodily harm, and sentenced to imprisonment in the state penitentiary for two years at hard labor. Judgment and sentence was pronounced and entered on the 6th day of October, 1909. From such judgment an appeal was taken by filing in this court on January 19, 1910, a petition in error with case-made.
Since the appeal was taken, and before the final submission of the cause, to wit, April 23, 1911, plaintiff in error has departed this life. His death having been suggested, the proceedings abate.
"In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death." Pim Boyd v. State, 3 Okla. Crim. 684,108 P. 431.
It is therefore considered that the proceedings in this action do abate; and it is so ordered.