People v. Sloper

WASTE, C. J.

Application for a stay of execution of death sentence, and for a writ of probable cause. The defendant, Felix Sloper, was placed on trial for the murder of George W. Campbell, a police officer of the city and county of San Francisco. The jury returned a simple verdict of guilty of murder in the first degree, and the defendant was sentenced to pay the extreme penalty. On appeal to this court the conviction was affirmed.

(People

v.

Sloper, ante,

p. 238 [244 Pac. 362].) During the pendency of the appeal Sloper was confined in the county jail of the city and county of San Francisco, and was there confined when the

remittitur

went down and was spread on the minutes of the superior court. It then became the duty of the court below to make all orders necessary to carry the judgment into effect. (Pen. Code, sec. 1265;

People

v.

Dick,

39 Cal. 102.)

Section 1227 of the Penal Code provides that if, for any reason, a judgment of death has not been executed, and remains in force, the court in which the conviction was had shall, on appplication of the district attorney, or may, upon its own motion, make and cause to be entered an order appointing a day upon which the judgment shall be executed. Pursuant to the provisions of the section, Sloper was, brought before the superior court of the city and county of San Francisco for the purpose of having a day fixed for the execution of the judgment. His counsel thereupon interposed a motion that no proceedings relating to the refixing of the time for execution be taken against the defendant for the reason that, since the rendition of the original judgment in the causey Sloper had become, and was at the time of making the motion, violently insane. Demand was also made

[605]

by counsel that the sanity of the defendant be determined by a jury to be impaneled for that purpose. The motion and demand were supported by the affidavits of several persons, each of whom stated, in substance, that the affiant believed that Sloper was insane, and gave reasons for such belief. There was also offered the oral testimony of a number of witnesses who testified that they knew the defendant, had closely observed him, and that, in their opinion, he was insane and did not realize the nature of the proceedings against him nor of his impending fate. After these proceedings, which appear to have consumed several days, the court denied the motion, and refused to submit the question of Sloper’s sanity to a jury. The defendant, by his counsel, thereupon announced in open court that, pursuant to subdivision 3 of section 1237 of the Penal Code, he appealed to the supreme court from the order denying his motion. Over the objection of appellant's counsel that it had lost jurisdiction to proceed further, by reason of the fact that an appeal had been taken, the lower court appointed the twenty-fifth day of June, 1926, as the day upon which the judgment of death should be executed. Application subsequently made on behalf of the defendant to the court below for a certificate of probable cause for the appeal was denied, and a stay of proceedings pending the application to this court for such certificate was refused.