Plaintiff in error, Isaac Houston, was convicted of murder in the district court of Cherokee county, upon an information filed in said court January 22, 1918, charging that in said county on or about the 28th day of October, 1917, he did kill and murder one Hardy Stevenson by shooting him with a shotgun. From the judgment and sentence rendered in accordance with the verdict assessing the death penalty, an appeal was perfected by filing in this court on April 5, 1918, a petition in "error with case-made.

While his appeal was pending and awaiting decision before this court, the Attorney General filed a motion to abate the proceedings, supported by the written státement of Sam L. Morley, warden of the penitentiary at. McAles- *648 ter, to the effect that plaintiff in error, Isaac Houston, under sentence of death while confined in the penitentiary, died on March 28, 1919: cause, tuberculosis.

\

In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death.

It is therefore considered and adjudged that the proceedings in the above-entitled cause do abate. It is so ordered, with direction to the trial court to enter its appropriate order to that effect.