Alexander

Since the appeal from the judgment and an order denying the defendant’s motion for a new trial was perfected the appellant has died. The question now under consideration is: What is or should be the effect of his death upon the proceedings? Counsel for appellant argues that this court should proceed to a determination of the merits of the appeal in order that the reputation of the deceased may not be wrongfully assailed, assuming of course, as he does, that such a consideration would result in a reversal. The argument we think proceeds from a wrong premise. What difference can it possibly make whether the proceeding be abated at this stage, or, assuming the event of a reversal, when it shall have reached the trial court ? At the present time there is no final judgment and if the action abate there never will be. It is not now determined that the defendant was guilty and, in the event of an abatement, never will be so determined. In fact the presumption of innocence, which fol lows the accused until final judgment is entered, would seem to conclusively refute counsel’s argument. If we should remand the case for a new trial it would then necessarily have to he abated without a…