¶1 Plaintiff in error, Herschel Green, was convicted of assault with intent to commit rape, and his punishment assessed at imprisonment in the penitentiary for a term of two years. On the judgment rendered in pursuance of the verdict, an appeal was perfected.
¶2 Since the appeal was taken, and before final submission of the cause, counsel for the state have filed a motion to abate the proceedings based on the death of plaintiff in error, who was killed in an automobile accident in the state of Kansas, near St. Johns, November 24, 1928, and was buried at Elkhart, Kan., on Tuesday, November 27, 1928.
¶3 In a criminal action, the purpose of the proceedings being to punish the accused, the action must necessarily abate upon his death.
¶4*262 It is therefore adjudged and ordered that the proceedings in the abpve-entitled cause, especially under the judgment rendered, have abated, and that the district court of Texas county enter its appropriate order to that effect.