Popev.United States

United States Court of Appeals, Fifth CircuitMay 22, 1968
394 F.2d 832 (5th Cir. 1968)

No. 24084.

May 22, 1968.

Joe Tunnell, Tyler, Tex., for appellant.

Robert S. Travis, Asst. U.S. Atty., Fort Worth, Tex., for appellee.

Before TUTTLE, GEWIN and GODBOLD, Circuit Judges.


BY THE COURT:

The attorney for the appellant has filed a suggestion, supported by appropriate proof, that the appellant died after submission of his appeal to this court and prior to a decision being rendered, and has filed a motion, as amended, praying that the decision and opinion of the court on the merits of the appeal be published in the same manner as if the appellant had lived and that the cause then be remanded to the district court with instructions to dismiss the prosecution because of appellant's death. The United States has joined in the motion to the extent of suggesting remand for dismissal or other appropriate relief.

Where a convicted defendant dies pending review of his case the appeal is to be dismissed. Wetzel v. Ohio, 371 U.S. 62, 83 S.Ct. 111, 9 L.Ed.2d 26 (1962), and cases there cited. There was no fine imposed, hence there is no occasion for an order concerning disposition of a fine. See American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1945); United States v. Johnson, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546 (1942).

This cause having abated the appeal is dismissed.