OPINION
EVANS, J.
In the
court below, the defendant was prosecuted under an indictment
charging him with accepting deposits in his bank while
knowing the bank to be insolvent. There was a verdict of
guilty and a judgment of conviction thereon. From such
judgment an appeal was duly taken to this court and all
proceedings under the judgment were suspended by the giving
of bail as fixed by the court. After the case came to this
court, and while still pending on appeal, the defendant died.
Counsel, who represented him up to the time of his death,
brought to the court the fact of such death and asked that
the prosecution be deemed to have abated by reason of such
death. Counsel for the state countered with a motion "to
dismiss appeal at defendant's cost". The
question which divides the parties is whether the state is
entitled to demand a judgment for costs or to maintain the
judgment of the court below, so far as it was entered for
costs.
It is
almost the universal holding of the courts, federal and
state, that the death of a defendant in a criminal
prosecution abates the action. The abatement is deemed to be
the necessary result of the death and is not subject to any
judgment or discretion of the court. The abatement applies
not only to the pending proceedings in the appellate court,
but applies likewise to all procedure had ab initio
in the court below, including the verdict and judgment of
conviction. More than a score of cases, federal and state,
are cited by counsel for the deceased defendant in support of
the above proposition. We shall not attempt to follow counsel
through all their citations. We shall content ourselves with
a citation of excerpts from a few of the authorities
respectively relied on by the contending
parties, beginning with the authorities cited by counsel for
the deceased defendant.
The
question presented is quite fully discussed in
O'Sullivan v. People, 144 Ill. 604, 32 N.E. 192,
20 L.R.A. 143, as follows:
"But
in criminal cases, under indictments for felonies, the sole
purpose of the action is not to give the people anything, but
to punish the defendant in his person; and the primary
judgment, when the defendant is found guilty, is, simply, * *
* that he be punished, specifying how. It is true that, under
our statute, judgment is also rendered for costs; but
this is incidental only, and it stands or falls with the
primary judgment that the defendant be punished. The
inquiry
upon the trial is only whether the defendant be guilty, and,
if guilty, the punishment that shall be inflicted upon his
person; the question of costs being neither submitted nor
considered, and the judgment therefor resulting solely as a
legal consequence of the primary judgment. It is therefore
apparent that, in judgments in civil cases, property rights
are more or less directly affected; and such rights, under
statute, are made to descend to and be obligatory upon the
representatives, after death, of either or all of the parties
to the judgment. But in criminal cases, where judgments are
rendered against the defendants under indictment for felony,
the people acquire no property rights, and the
representatives of the defendant do not take that which is
affected by the primary judgment, namely, the person of the
defendant * * * The only instance found in the books in which
a writ of error can, at common law, be prosecuted by the
representatives of a deceased person, upon the record of his
conviction in a criminal case, is that of an attainder for
treason or felony. The effect of such attainder at common law
was forfeiture of all estate, both real and personal, and
corruption of blood. 4 Bl. Comm. p. 382. And it was held that
a writ of error may be brought by the party attained,
'or, after his death, by his heirs or executors, to
reverse an attainder of treason or felony, but by no other
persons, whatever interest they may claim in the
reversal.' 1 Chit. Cr. Law 746, 747. But, since our
constitution provides that 'no conviction shall work
corruption of blood or forfeiture of estate' (article 2,
section 11, Constitution), there can be no attainder for
treason or felony here, and hence no case upon which the heir
or executor can prosecute a writ of error to reverse an
attainder. * * * When the defendant ordered to be punished is
dead, the execution of that order is
absolutely arrested; for the future it is as entirely a
nullity as any subsequent judgment arresting it can possibly
make it * * * the writ of error abated upon the death of
O'Sullivan. * * * No judgment will be entered for the
costs of either party."
In
Blackwell v. State of Indiana, 185 Ind. 227, 113 N.E.
723, the Indiana court held as follows:
"A
judgment for a fine differs from a judgment based on a tort
or contract. In case of a tort the judgment is based on the
principle of compensation to the injured party. In cases
arising out of contract the judgment is for money due the
judgment plaintiff under the terms of a contract, or for
damages for its breach. In case where a fine is imposed as a
punishment, no principle of compensation is involved. A fine
is imposed for the purpose of punishing the offender, and
when an offender dies, he passes beyond the power of human
punishment. There could be no justice in enforcing a fine
against the estate of an offender, for such a course would
punish only the family or those otherwise interested in the
estate."
In
Stanisics v. State, 90 Neb. 278, 133 N.W. 412, the
Supreme Court of Nebraska said:
"The
real issue in a criminal prosecution is the defendant's
guilt or innocence. A judgment for costs following a
conviction is but an incident to the judgment of conviction.
If the judgment of conviction cannot be reviewed, the
incident cannot be considered. * * * The appeal abated with
the convict's death."
In
Boyd v. State, 3 Okla.Crim. 684, 108 P. 431, the
Criminal Court of Appeals of Oklahoma said:
"A
civil action does not abate by the death of a party if the
cause of action survive or continue, but in a criminal action
the sole purpose of the proceedings is to enforce the
criminal law and punish the person found guilty of a
violation thereof. The personal representative of the
deceased is not responsible for the alleged violation of the
law by the defendant during his lifetime, and cannot be
required to satisfy the judgment rendered against him. It is
only the person adjudged guilty who can be punished, and a
judgment cannot be enforced when the only
subject-matter upon which it can operate has ceased to
exist."
In
State v. Furth, 82 Wash. 665, 144 P. 907, the Supreme
Court of Washington, said:
"The
courts of the country, both state and federal, have, with
marked unanimity, held that the death of the defendant in a
criminal case pending appeal, in the absence of a statute
expressing the contrary, permanently abates the action
and all proceedings under the judgment. They make no
distinction between a sentence of imprisonment and the
imposition of a fine. The underlying principle is that the
object of all criminal punishment is to punish the one who
committed the crime or offense, and not to punish those upon
whom his estate is cast by operation of law or
otherwise."
In
United States v. Pomeroy, 152 F. 279, 282, the Circuit
Court, S.D. New York, said:
"When
a court imposes a fine for the commission of a crime, there
is no idea of compensation involved. * * * But if the money
had been collected before his death, he would have been
punished. If it is collected
now, his family will be punished, and he will not be
punished. In my opinion, therefore, this prosecution should
be deemed ended and this judgment abated by the
defendant's death. I have had some doubt whether
this court should make an order declaring the judgment and
the proceedings abated, or whether it should leave the matter
to be determined in some other court, if attempt should be
made to collect the judgment. But it is certainly just to the
representatives of the estate that the question should be
determined, and I think it may as properly be determined by
the court which rendered the judgment as by some other
tribunal * * * My conclusion is that an order should be
entered declaring that the proceedings and the judgment have
abated * * *."
Similar
excerpts could be quoted from the courts of Oregon, of
Colorado, of California, of Missouri, of Pennsylvania, of
Alabama, of Texas, and from many standard textbooks.
As
against the foregoing the main reliance of counsel for the
state is the alleged holding in three of our own cases and in
two cases from the state of Kansas. In Albertson v
Kriechbaum...