79 P. 378 | Cal. | 1904
The defendant was convicted of manslaughter, and has appealed to this court. The trial judge refused a certificate of probable cause, and refuses to stay execution of the sentence until an application for such certificate can be made here.
A criminal appeal, except in capital cases, does not stay execution unless a certificate is filed by the trial judge or a justice of the supreme court that, in his opinion, there is probable cause for the appeal. (Pen. Code, sec. 1243.) When there is probable cause the defendant is clearly entitled to the certificate as matter of right, and there is probable cause whenever there is room for an honest difference of opinion as to the existence of any prejudicial error in the proceedings leading to the conviction. In all such cases it is the duty of the trial judge to grant the certificate, notwithstanding his own opinion that the record is free from error. (Matter of Adams,
In a case in all substantial respects the same as this it was said by Beatty, C.J., that: "It was the plain duty of the superior court to stay the proceedings during the time allowed by law for preparing the bill of exceptions, and for such further time as might be necessary for its settlement, provided the defendant exercised proper diligence in its preparation." (People
v. Lane,
In this case, in default of a proper order by the trial judge, we have made the order ourselves. *659