Opinion
No. 9383.
Submitted May 26, 1954.
Decided May 26, 1954.
CRIMINAL LAW — Selling beer to Minor — Appeal and Error — Death of Appellant on Appeal. 1. Criminal Law — Appeal and Error — Death of Appellant on appeal, effect of. Where defendant, who was convicted for unlawfully selling beer to a person under the age of 21 years, appealed to the supreme court, but one day before date appeal was assigned for oral argument, the defendant died, the appeal would be dismissed, the case closed, and trial court directed to enter an appropriate order to that effect.
Appealed from the District Court of Hill County; C.B. Elwell, Judge.
Mr. Jess L. Angstman, Havre, for appellant.
Mr. Arnold H. Olsen, Atty. Gen., Mr. Howard J. Luxan, Jr., Spec. Asst. Atty. Gen., Helena, Mr. Edward J. Ober, Jr., County Attorney, Havre, for respondent.
The appellant herein J.T. Hale, by information filed in the district court of Hill County, Montana, was accused of the crime of unlawfully selling beer to a person under the age of 21 years, on which charge he was tried, convicted by a jury and sentenced to be punished by a fine of $500 and by imprisonment in the county jail of Hill County for a term of four months.
From the judgment of conviction the accused appealed to this court.
The appeal was set for oral argument for the morning of May 18, 1954, at which time counsel for the state and counsel for the appellant before this court and, in open court, announced that on May 17, 1954, being the day previous, the appellant J.T. Hale had died by his own hand. Thereupon this court ordered the setting vacated, — continued the hearing on the oral argument to a day certain and directed that counsel in the cause investigate the matter and present to this court credible proof establishing the facts respecting the reported death and the identity of the decedent.
Thereafter a duly certified copy of the death certificate issued by the clerk and recorder of Hill County, Montana, and two certain affidavits by Edward J. Ober, Jr., the county attorney of Hill County, who prosecuted the accused J.T. Hale in the district court for the crime charged in the above information, were filed in the office of the clerk of this court and in this cause showing that the appellant J.T. Hale committed suicide by hanging on May 17, 1954; that the affiant Ober had viewed the body and made identification thereof as that of the appellant J.T. Hale and that on May 20, 1954, appellant's body was buried in Sunnyside Cemetery at Sunnyside, Washington.
Now this court having considered the evidence so submitted finds the facts to be as above stated and orders, adjudges and decrees that all proceedings on appeal have permanently abated by the death of the appellant J.T. Hale.
Accordingly the appeal is ordered dismissed, the case closed and the trial court is directed to enter an appropriate order to that effect. See State v. Lawrence, 122 Mont. 277, 201 P.2d 756 and State v. Pichette, 125 Mont. 327, 237 P.2d 1076.
Remittitur will issue forthwith.
MR. JUSTICES BOTTOMLY, FREEBOURN, ANGSTMAN and ANDERSON, concur.