In Re Fishman

[635]

GRIFFIN, J.

Petitioner was convicted of a felony by a jury in the Superior Court of San Diego County. The trial judge imposed a prison sentence and in addition ordered defendant to pay a fine of $3,500. After denying a motion for new trial and after hearing had, the trial court denied petitioner’s application to that court for bail and denied his application for stay of judgment pending appeal.

Petitioner instituted, in this court, this proceeding. The application for bail is predicated upon the ground that petitioner was and is suffering from a cancer of the nasal area, diabetes, and general ailments, and that immediate treatment is necessary, claiming that incarceration in the county jail in his present condition would mean that his health and years of his life would be in danger. In support of the contention that the court erred in denying the application for bail, petitioner cites such cases as

In re Pantages,

209 Cal. 535 [291 P. 831]. Affidavits of two physicians were attached to the petition in support of the allegations, stating that unless petitioner can have proper diet and adequate exercise, incarceration would result in grave danger to his diabetic condition and general health. An additional affidavit of another physician was submitted to this court for consideration, which affidavit was used in the habeas corpus proceeding. See

In re Application of Samuel Fishman for Writ of Habeas Corpus,

4 Crim. No. 846,

ante,

632 [241 P.2d 605], this day decided, for a more complete statement of the medical testimony produced.

Rule 32(b) of the Rules on Appeal provides that an application to a reviewing court for bail on appeal pending therein 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 or a reduction of bail was made to the superior court and such court

unjustifiably

denied the application. The trial court apparently considered the question of petitioner’s health at the time of that application and was satisfied that it would not be impaired by incarceration. The showing now made in this court, on the hearing of the petition, is equally convincing. The application was not