325 F.2d 318 (8th Cir. 1963), 17035, Crooker v. United States

Docket Nº17035, 17036.
Citation325 F.2d 318
Party NameDorothy CROOKER, Appellant, v. UNITED STATES of America, Appellee.
Case DateDecember 13, 1963
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 318

325 F.2d 318 (8th Cir. 1963)

Dorothy CROOKER, Appellant,

v.

UNITED STATES of America, Appellee.

Nos. 17035, 17036.

United States Court of Appeals, Eighth Circuit.

December 13, 1963

Page 319

Alfred J. Weinberg, Duluth, Minn., for appellant.

Edward J. Drury, Asst. U.S. Atty., Minneapolis, Minn., and Miles W. Lord, U.S. Atty. for District of Minnesota, on the brief, for appellee.

Before JOHNSEN, Chief Judge, and MATTHES and RIDGE, Circuit Judges.

JOHNSEN, Chief Judge.

Appellant has died during the pendency of these two criminal appeals. The causes thus have abated and the appeals accordingly must be dismissed. List v. Pennsylvania, 131 U.S. 396, 9 S.Ct. 794, 33 L.Ed. 222; Menken v. City of Atlanta, 131 U.S. 405, 9 S.Ct. 794, 33 L.Ed. 221; United States v. Johnson, 319 U.S. 503, 520, 63 S.Ct. 1233, 1241, 87 L.Ed. 1546; Singer v. United States, 323 U.S. 338, 346, 65 S.Ct. 282, 286, 89 L.Ed. 285; Rossi v. United States, 8 C.C.A., 21 F.2d 747.

Our expression that 'the causes have abated'-- not just the appeals-- has been taken from the List, Menken and Rossi cases. The courts of appeals for other circuits have used varying terms in their expression of the abatement produced by the appellant's death in a criminal case, but there appears to be no difference in the nature or scope of the abatement which they have thus recognized.

The Ninth Circuit has used the expressions, 'The * * * cause of action abated upon the death of the defendant', United States v. Dunne, 9 C.C.A., 173 F. 254, 258, and, 'As to the defendant-appellant * * *, who died since his appeal was perfected, the criminal action has abated', Baldwin v. United States, 9 C.C.A., 72 F.2d 810, 812.

The Seventh Circuit has used the expressions, 'the judgments abated', McGovern v. United States, 7 C.C.A., 280 F. 73, 74, and, 'Being criminal, the judgment is abated by the death of the plaintiff in error', Pino v. United States, 7 C.C.A., 278 F. 479, 483.

The Fifth Circuit has used the expression, 'the penalty abated with the death of the defendant', Dyar v. United States, 5 C.C.A., 186 F. 614, 623, in a case where a fine of $1,000.00 was involved. In another case, United States v. Theurer, 5 C.C.A., 213 F. 964, 966, where the Government was attempting to make collection of a penalty against the heirs of a deceased defendant, the statement made was that 'the original action abated by the death of Gaspard Theurer'. In a comparatively recent case, Daniel v. United States, 5 Cir., 268 F.2d 849, 850, the language of the court was that 'a criminal prosecution abates ab initio upon the death of an appellant'.

The Second Circuit has dealt with the matter of abatement in such a situation, United States v. Mook, 2 C.C.A., 125 F.2d 706, by simply stating that 'The authorities give us no alternative but to dismiss the appeal', citing as authorities relied on the Dunne, Dyar, Theurer, Pino and Rossi decisions, supra. As further authority, the court added United States v. Pomeroy, C.C.S.D.N.Y., 152 F. 279 (reversed on other grounds in United States v. New York C. & H.R.R. Co., 2 C.C.A., 164 F.2d 324), which had similarly declared that the death of a defendant in a criminal case abated the proceeding, including the judgment for a fine entered therein, which had not been collected.

Page 320

The Sixth Circuit, in dictum in a civil case, Howard v. Wilbur, 6 C.C.A., 166 F.2d 884, 885, observed that 'the rule in criminal cases is that the death of a defendant pending appeal abates the appeal'. It is apparent, however, that this constituted mere general expression, and was not intended as a delimitation of or disagreement with the concept of the cases above, that the death of a defendant produces an abatement of the 'cause', the 'action', the 'judgment', and the 'penalty', and not simply of the status or stage which has been reached in the case at the time of the death.

The authorities which the court took occasion to cite for its statement were List v. Pennsylvania, supra, 131 U.S. 396, 9 S.Ct. 794, 33 L.Ed. 222, and State v. Kriechbaum, ...

To continue reading

Request your trial
45 practice notes
  • 699 N.E.2d 1086 (Ill.App. 1 Dist. 1998), 1-96-1695, People v. Robinson
    • United States
    • Illinois United States Appellate Court of Illinois
    • 7 August 1998
    ...(S.D.1977) ("inclusion of a fine does not operate to alter the rule of abatement of all proceedings"); Crooker v. United States, 325 F.2d 318 (1963) (fine and prison sentence--conviction abated in its entirety); United States v. Knetzer, 117 F.Supp. 917 (S.D.Ill.1954) ("fine ......
  • 990 F.2d 208 (5th Cir. 1993), 92-3700, United States v. Asset
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (5th Circuit)
    • 27 April 1993
    ...accused of right to appellate decision and requires vacating of conviction and dismissal of indictment); Crooker v. United States, 325 F.2d 318, 320 (8th Cir.1963) ("[T]he death of a defendant produces an abatement of the 'cause,' the 'action,' the 'judgment,' and the 'penalty', and no......
  • 383 N.E.2d 947 (Ill. 1978), 50170, People v. Mazzone
    • United States
    • Illinois Supreme Court of Illinois
    • 4 December 1978
    ...Blake (1977), 53 Ohio App.2d 101, 371 N.E.2d 843; State v. Clark (1977), S.D., 260 N.W.2d 370; Crooker v. United States (8th Cir. 1963), 325 F.2d 318; United States v. Knetzer (S.D.Ill.1954), 117 F.Supp. 917 (citing O'Sullivan v. People (1892), 144 Ill. 604, 32 N.E. 192); see also Annot., 8......
  • 520 N.W.2d 860 (N.D. 1994), 940034, State v. Dalman
    • United States
    • North Dakota United States State Supreme Court of North Dakota
    • 24 August 1994
    ...579, 46 L.Ed.2d 531 (1976) (eliminating Durham rule for petitions of certiorari, but not for appeals of right)); Crooker v. United States, 325 F.2d 318 (8th Cir.1963); United States v. Asset, 990 F.2d 208 (5th Cir.1993); United States v. Davis, 953 F.2d 1482 (10th Cir.1992); United States v......
  • Request a trial to view additional results
45 cases
  • 699 N.E.2d 1086 (Ill.App. 1 Dist. 1998), 1-96-1695, People v. Robinson
    • United States
    • Illinois United States Appellate Court of Illinois
    • 7 August 1998
    ...(S.D.1977) ("inclusion of a fine does not operate to alter the rule of abatement of all proceedings"); Crooker v. United States, 325 F.2d 318 (1963) (fine and prison sentence--conviction abated in its entirety); United States v. Knetzer, 117 F.Supp. 917 (S.D.Ill.1954) ("fine ......
  • 990 F.2d 208 (5th Cir. 1993), 92-3700, United States v. Asset
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (5th Circuit)
    • 27 April 1993
    ...accused of right to appellate decision and requires vacating of conviction and dismissal of indictment); Crooker v. United States, 325 F.2d 318, 320 (8th Cir.1963) ("[T]he death of a defendant produces an abatement of the 'cause,' the 'action,' the 'judgment,' and the 'penalty', and no......
  • 383 N.E.2d 947 (Ill. 1978), 50170, People v. Mazzone
    • United States
    • Illinois Supreme Court of Illinois
    • 4 December 1978
    ...Blake (1977), 53 Ohio App.2d 101, 371 N.E.2d 843; State v. Clark (1977), S.D., 260 N.W.2d 370; Crooker v. United States (8th Cir. 1963), 325 F.2d 318; United States v. Knetzer (S.D.Ill.1954), 117 F.Supp. 917 (citing O'Sullivan v. People (1892), 144 Ill. 604, 32 N.E. 192); see also Annot., 8......
  • 520 N.W.2d 860 (N.D. 1994), 940034, State v. Dalman
    • United States
    • North Dakota United States State Supreme Court of North Dakota
    • 24 August 1994
    ...579, 46 L.Ed.2d 531 (1976) (eliminating Durham rule for petitions of certiorari, but not for appeals of right)); Crooker v. United States, 325 F.2d 318 (8th Cir.1963); United States v. Asset, 990 F.2d 208 (5th Cir.1993); United States v. Davis, 953 F.2d 1482 (10th Cir.1992); United States v......
  • Request a trial to view additional results