Opinion
Department Two
Hearing in Bank denied.
APPEAL from an order of the Superior Court of San Diego County fixing a date for the execution of a judgment of death. E. S. Torrance, Judge.
COUNSEL:
J. S. Callen, for Appellant.
W. F. Fitzgerald, Attorney General, and W. H. Anderson, Assistant Attorney General, for Respondent.
JUDGES: Beatty, C. J., Harrison, J., McFarland, J.
OPINION
THE COURT This is an appeal by the defendant from an order of the superior court made after judgment, fixing the day for the execution of a judgment of death, under section 1227 of the Penal Code.
The appellant was convicted in the superior court of the county of San Diego of the crime of murder in the first degree, and was sentenced to suffer the death penalty. He appealed from the judgment and from an order denying his motion for a new trial, and the judgment and order were affirmed by this court on August 23, 1897; and the remittitur was received and filed in said superior court on the twenty-fifth day of September, 1897. The day for the execution of the judgment having passed during the pendency of the appeal, he was on the thirtieth day of September, 1897, brought before the superior court under the provisions of said section 1227 of the Penal Code, and an order was on that day made fixing the eighth day of October, 1897, for the execution of the judgment. From this order the present appeal is taken.
Owing to circumstances not necessary to be here related, the judgment was not executed on said eighth day of October; and, as that day was passed before the present appeal was submitted here, it is evident that this appeal is of no further importance. It is now of no consequence whether the order appealed from be affirmed or reversed. Its pendency can have no effect upon any further proceedings in the court below, for it does not work a stay of the judgment, or of any subsequent proceeding proper to be taken. (People v. McNulty , 95 Cal. 594.) But, as the law in this respect does not seem to be universally understood, we will formally dispose of the appeal.
Appellant contends that the information against him, and upon which he was convicted, was invalid because at the time the information was filed there was a grand jury of the county in session, and that while the grand jury was in session he could not be put upon his trial upon an information. This contention could not be maintained, even if made on an appeal from the final judgment, for the two modes of procedure by indictment or information are concurrent; but the judgment in the case was conclusive on that point.
There is no merit in the point that it does not affirmatively appear why the judge of the superior court who pronounced the original judgment did not make the order here appealed from; this court will take judicial knowledge of the fact that he had ceased to be a judge of said court when the order was made.
There is no merit in the contention that the warden of the state prison has no authority to execute a judgment of death; such authority is expressly given in section 1227 of the Penal Code, as amended in 1891. (Stats. 1891, p. 274.)
The only point which has any merit, made by the appellant, is that the order appealed from was erroneous because the day fixed for the execution of the judgment was less than ten days from the date of the order. The principal reason, however, why an order fixing so short a time is held to be an abuse of discretion is that it does not give, or might not give, the appellant sufficient time to have a bill of exceptions prepared so that an application for a certificate of probable cause might be presented to the judge of the court below, or to a justice of this court, before the day fixed for the execution of the judgment. But in the case at bar the bill of exceptions was settled on the first day of October; and as a matter of fact a petition for a certificate of probable cause, together with the bill of exceptions, was presented to justices of this court before the day fixed for the execution of the judgment and was denied. (See People v. Durrant , 119 Cal. 201.) And as the bill of exceptions shows that there was no ground for a certificate of probable cause, the appellant was in no way prejudiced by the order.
The order appealed [52 P. 1079] from is affirmed, and it is ordered that the remittitur issue forthwith.
We approve the above order that the remittitur in the above entitled case issue forthwith.