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

Docket Nº:17035, 17036.
Citation:325 F.2d 318
Party Name:Dorothy CROOKER, Appellant, v. UNITED STATES of America, Appellee.
Case Date:December 13, 1963
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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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...

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