Opinion
Docket No. 1735.
November 20, 1928.
APPLICATION to the District Court of Appeal for a writ of probable cause. Granted.
The facts are stated in the opinion of the court.
Nathan O. Freedman, William J. Leete and Virgil G. Lewis for Petitioner.
No appearance for Respondent.
Petitioner has appealed to this court from a judgment of conviction rendered against him in a criminal case. Before the appeal was perfected he asked the trial court for a certificate of probable cause for his appeal, but the court, assuming to exercise the "sole discretion" attempted to be conferred upon it by section 1243 of the Penal Code as amended in 1927 (Stats. 1927, p. 1062), refused to issue the certificate. Petitioner, upon due notice to the district attorney, asks this court to issue such a certificate, which is, in effect, an order staying execution.
[1] The grounds for petitioner's appeal are set forth in general terms in his petition. Since the petition was filed the merits of the appeal have been argued before us. From the petition and from the argument we are satisfied, applying the test prescribed in In re Adams, 81 Cal. 163 [22 P. 547], that the appeal presents a case that is debatable, a case upon which there may be an honest difference of opinion, and that the appeal is not frivolous. Under the reasoning of our opinion in In re Albori, ante, p. 42 [ 272 P. 321], decided November 19, 1928, we determine that the petition for a stay of execution should be granted.
In view of the decision in In re Albori, supra, we take this opportunity of calling the attention of trial judges in criminal cases to the fact that they are as much bound by the rules laid down in In re Adams, supra, as they were before the amendment of 1927 to section 1243 of the Penal Code.
Petitioner is granted a stay of execution pending his appeal.
Craig, J., and Thompson (Ira F.), J., concurred.