The plaintiff in error, Jesse Fletcher, was charged by information with having murdered one Jesse Berk-low by shooting him on the 10th day of July, 1911. Hpon his trial he was found guilty by the verdict of the jury of the crime of murder, with the death penalty. December 30, 1911, in accordance with the verdict of the jury, he was sentenced to be hanged. To reverse the judgment, an appeal was perfected by fiilng in this court June 17, 1912, a petition in error, with case-made. Pending the determination -of his appeal, he was confined in the penitentiary at McAlester.

The Attorney General has filed a statement of the warden of the penitentiary and certificate of death, showing that since the appeal was taken, and before the final submission of the cause, plaintiff in error departed this life. I-Iis death having-been suggested, the proceedings abate, and no decision upon the merits of the appeal will be rendered. In Boyd v. State, 3 Okla. Cr. 684, 108 Pac. 431, it is said: In a criminal action, *465 the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death.

It is therefore considered that the proceedings in this cause do abate; 'and it is so ordered.