ROY NOBLE LEE, JUSTICE, FOR THE COURT:
Roy W. Haines was convicted in the Circuit Court of Lauderdale County on a charge of murder and was sentenced to life imprisonment. He perfected an appeal to this Court on August 13, 1982, which appeal is presently pending. Haines died on December 29, 1982, and the State of Mississippi has filed a suggestion of Haines' Death and has requested that the appeal be dismissed as moot.
Attorneys for Haines have responded to the State's Suggestion of Death and have countered with a motion to dismiss the appeal, vacate the judgment of the lower court, and remand the cause to the lower court with instructions to dismiss the indictment. In other words, the motion requests that all proceedings be declared void ab initio.
The majority of jurisdictions in the United States, including the Federal courts, apply the rule requested by Haines' attorneys and hold that, in such case, an appeal should be dismissed as moot, and the case should be remanded to the trial court with instructions to vacate the judgment and dismiss the indictment. No less than four Federal Circuit Courts of Appeal have so held. In United States v. Pauline, 625 F.2d 684, 685 (5th Cir. 1980), in discussing the question, the court stated its reasons for abatement as follows:
In years past, we followed that rule of abatement ab initio: we dismissed the appeal and remanded to the District Court with directions to vacate
the judgment and dismiss the indictment. Abatement of the entire course of the proceedings has several significant effects: if the sentence included a fine, abatement ab initio prevents recovery against the estate, and, ultimately, the heirs; the abated conviction cannot be used in any related civil litigations against the estate; and arguably the family is comforted by restoration of the decedent's" good name. "
In the instant case, it has been made known to the Court as a fact, supported by the Official Death Certificate of the State of Florida, that appellant, Rick Pauline died in Tampa, Florida, on April 15, 1980. Based on our holding today, the motion for reconsideration is granted, the appeal is dismissed as moot, and the case is remanded with directions to the District Court to vacate the judgment and dismiss the indictment.
This Court has held that a judgment of conviction in a lower court removes the presumption of innocence and the judgment is considered to be valid. In Nicholson v. State, 254 So. 2d 881, 884 (Miss. 1971), the Court said:
The basis for so holding is that unless and until the judgment of the trial court is reversed, the defendant stands convicted, is no longer presumed to be innocent of the crime for which he is convicted, and may be impeached by that conviction. . . . When a jury in circuit court returns a verdict of guilty, it is a conviction of the crime charged, and unless and until it is reversed by this Court, the conviction stands, and may be used for impeachment purposes. . . .
See also Jackson v. State, 418 So. 2d 827 (Miss. 1982).
The Indiana Supreme Court in Whitehouse v. State, 364 N.E.2d 1015, 1016 (Ind. 1977), expressed the minority view as follows:
We do not see that the dismissal of the appeal, without more, denies any rights granted or protected by the statutes or the constitutional provisions. Such rights were personal to and exclusively those of the defendant. Although a criminal conviction carries a definite" fall-out "that
extends beyond the person of the defendant, we are aware of no right to be free of such, even if such conviction be erroneous. I may no more appeal my brother's ...