Summary
holding that purely judicial, and not legislative or administrative questions, can only be adjudicated in a court invested with judicial powers
Summary of this case from Talbot v. Ames ConstOpinion
No. A-3482.
Opinion Filed February 15, 1919.
ABATEMENT OF PROSECUTION — Death of Accused. Where accused dies pending the determination of his appeal, the case will be abated.
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.
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.
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.
It is therefore adjudged and ordered that the proceedings in this case be abated, and the same is remanded, with direction to the trial court to enter its appropriate order to that effect.