Opinion
Crim. No. 164.
December 30, 1908.
APPLICATION for a stay of execution of sentence rendered upon the conviction of the defendant of manslaughter in the Superior Court of the City and County of San Francisco. F. H. Dunne, Judge.
The facts are stated in the opinion of the court.
E. H. Wakeman, for Petitioner.
It appears that the defendant was convicted of manslaughter and sentenced to a term of five years in the state prison, the sentence being imposed on December 18, 1908. He has since appealed to this court and has prepared, served and presented to the trial judge his bill of exceptions, which bill of exceptions has not yet been settled. The trial judge has refused to give him a certificate of probable cause, and has further refused, and now refuses, to stay the execution of sentence pending the settlement of the bill of exceptions, or for such reasonable time as may be necessary for the settlement of the same. Defendant desires to apply to this court for a certificate of probable cause, and, in order to pass upon the question as to whether or not he is entitled to it, it is necessary for this court to have the record and the settled bill of exceptions before it. The due administration of justice and the spirit of the law and the settled practice of the supreme court of this state requires that the defendant should be given a reasonable time in which to prepare the record and present to this court the question as to whether or not there is probable cause for the appeal, and that, in the meantime, the defendant should not be incarcerated in the state prison. ( In re Adams, 81 Cal. 163, [22 P. 547]; People v. Gallanar, 144 Cal. 656, [ 79 P. 378].)
It is therefore ordered that the execution of the sentence herein be stayed pending the settlement of the proposed bill of exceptions, and for such reasonable time thereafter as will enable the defendant to present the matter to this court, or until the further order of this court.