People v. Ross

BEATTY, C. J.

The defendant was convicted of murder and sentenced to be hanged. On appeal to the supreme court, the judgment was affirmed and the cause remanded to the superior court for further proceedings. The defendant was thereupon brought before that court, and his various objections being overruled, Friday, the tenth day of January, 1902, was designated as the date for carrying the sentence into execution. From this order the defendant immediately appealed, and his request for a certificate of probable cause for the appeal having been denied by the trial judge, he applies to me, as one of the justices of the supreme court, for a certificate that in my opinion there is probable cause for his appeal. His object in making this application is, of course, to secure a stay of the execution until his appeal can be heard, and he assumes that my certificate would have that effect. There is, however, grave doubt whether this assumption is well

[60]

founded, and reliance upon it might prove to have been a fatal mistake. The statutory provision relating to certificates of probable cause is found in section 1243 of the Penal Code, which in terms embraces only appeals from judgments, and-does not embrace appeals from orders after judgment. It has sometimes been assumed in the discussion of other matters that the provision would be construed as applying to appeals such as the present

(People

v.

McNulty,

95 Cal. 594); but the proper construction of the law has never been settled by a decision of the court, and, of course, cannot be settled by any decision or order that I might make without the concurrence of my associates. In

People

v.

McNulty,

95 Cal. 594, all that was decided was that an appeal from an order fixing the date for executing a capital sentence, does not,

proprio vigore,

stay the execution. In making this decision, it was said,