67 P. 13 | Cal. | 1901
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 founded, and reliance upon it might prove *60
to have been a fatal mistake. The statutory provision relating to certificates of probable cause is found in section
I may add that, in my opinion, there are substantial grounds upon which the legislature may be supposed to have intended to make a different rule as to the stay of proceedings upon an appeal of this character and an appeal from a final judgment. On appeals from the judgment a stay of proceedings may be safely and properly granted by the trial judge or by a single justice of the supreme court, because no serious inconvenience can result from his mistake, if it turns out that in the opinion of the court the judgment is free from error. But on appeals from orders such as that in question here, where the effect of a stay would generally be to make another order of the same kind necessary, from which a new appeal could be taken, the *61 mere doubts of a single judge, if he could act alone, might result in the indefinite postponement, or even the ultimate prevention, of the execution of a capital sentence in a case where the court on the hearing would find no ground for questioning the propriety of the order or orders appealed from. In such a case the granting of the stay must depend upon some apparent merit in the appeal, and that is a matter which the court alone is competent to decide. The decision should be made by the tribunal upon which the responsibility rests.
For these reasons I shall decline to act upon the petition, leaving the appellant at liberty to apply to the court for asupersedeas, according to the practice in People v. Durrant,