Opinion
No. 9567.
Decided July 26, 1955.
Appeal from Fourth Judicial District Court, Lake County; Albert Besancon, Judge.
R.H. Wiedman, and Stanley M. Doyle, Polson, for Appellant.
J.A. Turnage, County Attorney, Polson, for Respondent.
The appellant, Frank Koble, Sr., was tried, convicted by a jury and sentenced in the district court of Lake County, Montana, for the crime of unlawfully supplying intoxicating liquor to a person under the age of twenty one (21) years. From the judgment of conviction he took this appeal.
On June 29, 1955, a written stipulation was entered into by the county attorney of Lake County, representing the state and by defendant's counsel, that this appeal be dismissed by reason of the death of the appellant, Frank Koble, Sr., same having occurred at Ronan, Montana, on the 8th day of June, 1955. A duly certified copy of the death certificate issued by the county clerk and recorder of Lake County, Montana, and the affidavit of J.A. Turnage, the duly elected, qualified and acting county attorney of Lake County, and the affidavit of William Shrider, a duly licensed undertaker and embalmer residing at Ronan, Montana were filed in the office of the clerk of this court, together with the aforesaid stipulation; and it appearing that the appellant, Frank Koble, Sr., died on June 8, 1955 at Ronan, Montana of a gun shot wound and that thereafter appellant's body was prepared for burial and that such burial was had at Ronan, Montana, under the direction of the affiant William Shrider;
NOW THEREFORE this court having considered the evidence so submitted, finds the facts to be as above stated and on written motion of appellant's counsel of record herein, orders, adjudges and decrees that all proceedings in this appeal, No. 9567, in this court have permanently abated by the death of the appellant Frank Koble, Sr.
Accordingly the appeal is ordered dismissed, the case closed and the trial court is directed to enter an appropriate order to that effect. See State v. Hale, Mont., 270 P.2d 993; State v. Pichette, 125 Mont. 327, 237 P.2d 1076 and State v. Lawrence, 122 Mont. 277, 201 P.2d 756.
Remittitur will issue forthwith.
MR. CHIEF JUSTICE ADAIR and MR. JUSTICES ANGSTMAN, ANDERSON, DAVIS and BOTTOMLY, concur.