Defendant, convicted of a criminal offense in the court below, perfected his appeal to this court in the manner required by law. It now appears to the satisfaction of this court that after the perfecting of the appeal, and two days prior to the *Page 359 date fixed for the submission thereof upon oral argument, appellant died.

It is the weight of authority that, when the sole defendant in a criminal case dies while his appeal is pending and undetermined, the prosecution does not survive, but abates in toto whatever be the judgment appealed from. See Note 19 Ann. Cas. 1147; State v. Furth, 82 Wn. 665, 144 P. 907; Bonds v. State, 15 Okla. Cr. 678, 179 P. 618, State v. Banks, 94 Wn. 237, 161 P. 1189; State v. Guffey, 52 S.D. 95, 216 N.W. 860.

The appeal herein is therefore dismissed and the cause remanded to the circuit court, with directions to enter an order of abatement.

CAMPBELL, P.J., and POLLEY and RUDOLPH, JJ., concur.

ROBERTS and WARREN, JJ., disqualified and not participating.