The plaintiff in error, hereinafter called defendant, was convicted in the district court of Murray county of the crime of arson, and his punishment *166 fixed at confinement in the state penitentiary for a term of one year.

From the judgment of conviction, defendant appealed to this court, which appeal was perfected May 6, 1929. Since the appeal and before final submission of the cause, the defendant departed this life, as shown by motion of the attorney of record for defendant, with stipulation of the county attorney that the same is true, indorsed thereon.

In a criminal prosecution the purpose of the proceeding being to punish the accused, the action must necessarily abate upon his death, and, where it is made to appear that plaintiff in error has died pending the determination of his appeal, the case will be abated. It is therefore ordered that the case do abate, with directions to the trial court to enter its appropriate order to that effect.