Opinion
No. 72-1067.
March 21, 1972.
Bradley C. Miles, San Angelo, Tex., Court-appointed for Sikes.
Tom Webb, San Angelo, Tex., Court-appointed for Jenkins.
W. Truett Smith, San Angelo, Tex., Court-appointed for Mashburn.
Melvin Gray, San Angelo, Tex., Court-appointed for Sanders.
Eldon B. Mahon, U.S. Atty., John G. Truelson, Conard L. Florence, Cecil Emerson, Asst. U.S. Attys., for appellee.
Appeal from a decision of the United States District Court for the Northern District of Texas.
Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.
It has been made known to the Court as a fact, supported by the official death certificate of the State of Texas, that appellant Joseph Earl Mashburn in the above-styled and numbered appeal died in Brownwood, Texas, on February 14, 1972. Since a criminal prosecution abates ab initio upon the death of an appellant, the case must be remanded with directions to the district court to vacate the judgment and dismiss the indictment as to appellant Mashburn. Durham v. United States, 1971, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200; United States v. Askew, 5 Cir. 1971, 441 F.2d 258.
Reversed and remanded.