In Re Ward

THE COURT.

The petitioner was on the second day of December 1899, convicted of a felony in the superior court of the city and county of San Francisco, to wit, of embezzlement. A judgment was rendered against him that he be imprisoned in the state’s prison at San Quentin for the term of seven years. From this judgment he has taken an appeal, and a certificate of probable cause was granted him by the judge of the court in which he was convicted. He made application to said court to be allowed to give bail pending the appeal, and the application was by said court denied. He is now before this court on

habeas corpus

for the purpose of being allowed to give such bail. Upon the hearing he produced the certificates and affidavits of three respectable physicians, in all of which it is stated that he is suffering with chronic catarrh and asthma, and that confinement in jail would be injurious to his health, and in one of which it is stated that “confinement in jail is injurious to his health and endangers his life.” At the hearing there was

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the additional testimony of Dr. James H. O’Connor, a reputable physician, who testified very fully as to the condition of the petitioner, and stated very positively that, from his frequent examinations .of the petitioner, his opinion was that confinement in the jail under the conditions there existing would, if continued two or three months, result fatally. At this hearing, which was on January 13, 1900, it was stated by an attorney who represented the district attorney’s office that petitioner and his counsel had refused to allow any physician selected by the district attorney to examine petitioner. As this statement was not denied (the main counsel for the petitioner being absent), it was suggested by the court that the case would be continued to allow an examination of the petitioner by some physician selected by the district attorney. Afterward, a stipulation was entered into by the district attorney and the attorney for petitioner that Dr. J. G-. Morrissey was a physician satisfactory to both parties, and that said physician “may make and file his affidavits herein showing the physical condition of Bernard Ward, petitioner herein.” Such an examination was afterward made by Dr. Morrissey, and his affidavit has this day been presented to the court, and is as follows: