In Re McCaughan

VAN DYKE, P. J.

This is an application for bail pending appeal from a felony conviction. A jury found petitioner guilty of involuntary manslaughter. The trial court made its order granting probation, and petitioner appealed. (Pen. Code, § 1237, subd. 1.) She applied to the trial court for

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bail pending appeal, and it was denied. She now petitions this court to grant bail.

It appears that petitioner at the time of the offense charged was a psychiatric technician employed at the Modesto State Hospital; that she was engaged in force feeding a patient who had refused to eat; that she was being assisted by another technician who became a codefendant, but who was acquitted by the jury at the same trial which resulted in the conviction of petitioner; that the patient died in the course of or soon after the feeding, and that an autopsy showed the presence of partially digested food in her bronchi and trachea causing death by strangulation. It appears to have been the contention of the prosecution that petitioner had been guilty of involuntary manslaughter done either (1) in the commission of an unlawful act not amounting to felony, or (2) in the commission of a lawful act which might produce death, done without due caution and circumspection. In support of the first theory of guilt the prosecution sought to prove a violation of section 361 of the Penal Code (harsh treatment of an insane person) and/or a violation of section 242 (battery), both misdemeanors. In support of the second theory the prosecution sought to prove that the force feeding, if lawful, was negligently done.

Rule 32 (b) of the Rules on Appeal provides that:

“An application to the reviewing court for bail ... on an appeal . . . shall be made on such notice to the district attorney and the attorney general as the court may determine, and shall include a showing that proper application for bail . . . was made to the superior court and that such court unjustifiably denied the application.”

Under section 1272 of the Penal Code, in a case such as this, a discretion is conferred upon the trial court as to whether or not bail should be granted on appeal. The discretion being so vested, its exercise by the trial court will not be disturbed except in an instance of manifest abuse.