For the reasons already advanced the stay of the judgment in capital cases does not affect the custody of the defendant in the warden pending execution. A certificate of probable cause is provided for in cases coming within the second classification of appeals from the judgment in section 1243 and in such case a record must be presented upon which the judge or justice, as the case may be, may determine whether there is probable cause for the appeal under the rule ( In re Adams, 81 Cal. 163, 166 [22 P. 547]; People v. Gallanar, 144 Cal. 656 [ 79 P. 378]). In the event the certificate of probable cause is granted it operates to stay the execution of the judgment and the custody (secs.

( People v. Davis, 67 Cal.App.2d 837, 839 [ 155 P.2d 675], and cases cited.) It is also argued in this proceeding that since the appeal from the judgment is not frivolous, and since the record shows a probable cause for the appeal, petitioner is, as a matter of right, entitled to an order for stay of execution pending appeal, and that the trial court abused its discretion in denying this right, citing such cases as People v. Gallanar, 144 Cal. 656 [ 79 P. 378]; People v. Mayen, 49 Cal.App. 314 [ 193 P. 173]; People v. Davis, 67 Cal.App.2d 837 [ 155 P.2d 675]; In re Burnette, 35 Cal.App.2d 358 [ 95 P.2d 684]; and People v. Burnett, 34 Cal.App.2d 663 [94 P.2d 399]. As to this point, the People question the right of the trial court, since the amendment of Penal Code, section 1243, in 1927, to issue a certificate of probable cause, and the right of the appellate court to pass on the question of probable cause, except on review in those cases where the trial court has abused its discretion or unjustifiably refused to grant the stay.

For many years prior to the session of the legislature held in 1927 — indeed, ever since 1874 — the language of section 1243 of the Penal Code stood as follows: "An appeal to the supreme court from a judgment of conviction stays the execution of the judgment in all capital cases, and in all other cases, upon filing with the clerk of the court in which the conviction was had, a certificate of the judge of such court, or of a justice of the supreme court, that, in his opinion, there is probable cause for the appeal, but not otherwise." The section had been held ( In re Mayen, 49 Cal.App. 531 [ 193 P. 813]; In re Murphy, 185 Cal. 298 [97 P. 59]) to apply to appeals to the district courts of appeal as well as to appeals to the supreme court, and it had been determined in many cases (see In re Adams, 81 Cal. 163 [22 P. 547]; People v. Gallanar, 144 Cal. 656 [ 79 P. 378]) that an appealing defendant in a criminal case was entitled to the certificate mentioned in the section as a matter of right if his appeal were not clearly frivolous. It was said in one of these cases that the phrase "probable cause for the appeal," as employed in the section, "means only that there is presented a case that is debatable; a case that is not clearly and palpably frivolous and vexatious; a case upon which there may be an honest difference of opinion" ( In re Adams, supra).

A similar application is now presented to this court. [1] The law is well settled that where an appeal is not clearly and palpably frivolous and vexatious, but presents debatable questions upon which there may be honest difference of opinion in regard to the existence of prejudicial error in the proceedings leading to the conviction, a writ of probable cause should be granted ( People v. Gallanar, 144 Cal. 656 [ 79 P. 378]; In re Adams, 81 Cal. 163 [22 P. 547]; People v. Valencia, 45 Cal. 304; People v. Ramirez, 63 Cal.App. 510 [ 219 P. 73]; In the Matter of Mayen, 49 Cal.App. 531 [ 193 P. 813]; People v. Clinton et al., 72 Cal.App. 88 [ 236 P. 929]). [2] The record here reveals the exclusion of certain evidence sought to be adduced by the defendant which, it was claimed, had a bearing upon the question of the genuineness of the check upon which the charge was based. Irrespective of the question of whether the rulings of the trial court in connection with the exclusion of such evidence amount to probable cause for a reversal of the judgment, the rejection of said evidence does, in our opinion, constitute probable cause for appeal.

[1] The trial court on application by appellants refused to grant a certificate of probable cause for the appeal, and they have applied to this court therefor. Where a case is presented in which the existence of prejudicial error in the proceedings resulting in conviction is a debatable question on which honest differences of opinion may exist, and the appeal is not merely frivolous or vexatious, it is the duty of the trial court to grant such certificate, and upon its refusal so to do this court has the legal power, and it is its duty, to grant relief ( In the Matter of Harris Adams, 81 Cal. 163 [22 P. 547]; People v. Gallanar, 144 Cal. 657 [ 79 P. 378]; People v. Lane, 96 Cal. 597 [31 P. 580]; People v. Ramirez, 63 Cal.App. 510 [ 219 P. 73]; In the Matter of Mayen, 49 Cal.App. 531 [ 193 P. 813]). Upon an examination of the record in this case we find such facts to exist.

In several California cases the attention of the judges of the superior court is particularly directed to their bounden duty in this regard. ( In re Adams, 81 Cal. 167 [22 P. 547]; People v. Gallanar, 144 Cal. 657 [ 79 P. 378]; People v. Valencia, 45 Cal. 305; Ex parte Hoge, 48 Cal. 6.) As is stated in the Adams case, supra: "It matters not that the judge before whom the prisoner has been tried may be satisfied that his conviction is in every respect regular and valid (which, indeed, must always be the case before there can arise any necessity for an appeal); he is, nevertheless, bound to grant a certificate of probable cause, and stay the execution pending the appeal, unless the case is so clear as to admit of no rational doubt or serious discussion."

This stay of execution was granted by us to enable petitioner to exercise his right under section 1243 to apply to a justice of this court for a certificate of probable cause. The order was made upon the authority of such cases as People v. Lane, 96 Cal. 596, [31 P. 580], In re Adams, 81 Cal. 163, [22 P. 547], People v. Clark, 125 Cal. 251, [57 P. 986], and People v. Gallanar, 144 Cal. 656, [ 79 P. 378]. When we made the order staying execution of the sentence, we further ordered that, pending the stay, petitioner be remanded to the custody of the sheriff.

Defendant thereupon applied to this court for a stay of execution of the sentence until such time as he can lawfully apply to a justice of this court for a certificate of probable cause, that is, until the record on his appeal shall have been transmitted to this court. [1] We are constrained to the view that, under the authority of People v. Lane, 96 Cal. 596, [31 P. 580], and People v. Gallanar, 144 Cal. 656, [ 79 P. 378], we have no discretion in the matter but must grant the stay of execution until defendant can exercise the right granted him by section 1243 of the Penal Code, i. e., the right to apply to a justice of this court for a certificate of probable cause. [2] It has been suggested by the district attorney that, subsequent to defendant's conviction and while he was confined in the county jail in the custody of the sheriff, he attempted to escape.

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.