74 P. 1025 | Or. | 1904
delivered the opinion.
On March 31,1903, a judgment of death was pronounced against the defendant by the circuit.court for Baker County upon a conviction previously had. On the same day a warrant was duly issued, and delivered to the sheriff as. required by law, in which a day was appointed for the execution of the judgment. Before the judgment was executed, however, an appeal was taken by the defendant,.and a certificate of probable cause issued by one of the justices of
Under the statute the time for the execution of a judgment of death is no part of the judgment, and is not required to be stated therein. When the judgment is pronounced, a warrant signed by the judge and attested by the clerk, stating the conviction and judgment, and appointing a day upon which the judgment is to be executed, must be drawn and delivered to the sheriff of the county : B. & G. Comp. § 1456. After it has been executed, the sheriff or officer executing it'must return it to the clerk, with a statement of his doings indorsed thereon: B. & C.
From these provisions of the statute, it is clear that an appeal in criminal actions does not vacate the judgment, or the warrant issued thereon, nor does it suspend the execution thereof, unless a certificate of probable cause is filed with the notice of appeal: Whitley v. Murphy, 5 Or. 328 (20 Am. Rep. 741). If such a certificate is filed, it operates to suspend or hold in abeyance the execution of the judgment,.and the sheriff or officer having the custody of the defendant is required to keep him to abide the judg
We are of the opinion, therefore, that the proper procedure was had in the court below, by fixing another day for the execution of the judgment against the defendant, and that such execution may properly take place under the warrant issued prior to the appeal. The judgment of the circuit court was the only one upon which the defendant could be executed, and it was not necessary for him to be resentenced after the affirmance of the case on appeal (In the Matter of the Application of Ferris, 35 N.Y. 262), nor for any further proceedings to be had thereon,- except to fix a new day for his execution. The warrant directing the execution of the defendant was therefore issued prior to the taking effect of the act of 1903, and is excepted from, its operation. The judgment is affirmed. Affirm:ed.