The San Francisco call., 1897-12-09
ONE MORE WORD AND
DJRRAuR IS DOOMED.
Final Decision Rendered by the Supreme Court on All
the Appeals Pending Before That
Tribunal.

are void because each contained an explicit
direction tnat the defendant should be kept
in close confinement at san Quentin by the
Warden OF that prison from The time of his
delivery thereat until his execution.
This WAS question involved IN the original
appeal anc, so far the judgment is con-
Cerned, was thereby concluded. However, if
the obj actl on possessed any merit IL might be
press"C-as It ls-agalnst the order OF April
10. But il has no merit 1t may be true That
n direction 10 keep the defendant in close con-
fnemeut has no proper place in the judgment, I,
but if so it is Simply superhuous and harm
Nor is the order or judgment void because it
imposes double punishment. 1t is conceded
that imprisonment in the penitentiary pend
ing execution does add something to the pun
lshment prescnbeG by the Iaw OF the Stale 1or
the crime OF murder prior to the amendments
OF 1891. 1t was so held in both of the opin-
ions ae ivered by This court sitting in bank in
1t is therefore point settled, so far as the
deliberate opinion OF this court can settle il,
that Imprisonment in the penitentiary pend
ing eXeCu ion IS II distinct bHrt of the punish .
ment for murder pres cri bed by our law. = =
The court did not err in refusing certificate
OF probable cause, and II II had done so the
remedy not by appeal but b. rene wing the
application before a Justice or Justices OIL iii,
court, which WAS the course actually taken,
with ihe result stated.
This disposes of all the points in
voIved in the first appeal and shows
that the certificate of probable cause
was properly denied and that the orde er
snould stand aft ned.
In the second appeal the confession of error
renders II unnecessary 10 discuss the points 10
be ruIed in defendants favor and Improper,
pernaDs, TO discuss any which might have
been ruled against him. Our reasons Tor re-
verslng The order were, we thought, suf-
tciently stated IN the opinion filed Novem Der
II, 1897, setting form the grounds upon
which We granted the certificate OF proba ple
cause.
Buf II seerns that unoD cna noir+ ,-a foilad
TO make ourselves entirely Gear. We said
that an order fixing the date OF defendants
execution within the time allowed him BY
statute 10 present his bill OF exceptions was q
violation OF his ghts and gross abuse of
discretion. We did not have time IN making
that order to elaborate the proposition sta eG
ana since the point OF practise is important,
we take the present occasion TO make il
palmer If can.
An order fixing the date OF execution is IAN
order made after final Judgment affecting The
substantial rights OF the defendant" and as
such Is appealt bic. But the appeal does NOT
stay the execution without certificate of
p, obabIe cause, and, therefore. the defendant
IN ~ De executed tending his appeal # he iuils
10 secure such certificate. TINS being so, ii Is
OF vital Importance that the defendant hould
not be deprived OF the means provided by the
statute Tor obtaining stay. Among those
means IS an application 10 the Justices OF the
supreme Court IN case the certificate is re-
fused by the Judge of the sup srior Court.
In order 10 make the appllcatio o Il Justice
OF the Supreme Court II is ordluaril essential
that there should be settled bill of excep-
tons, Tor by no other means can a Judge who
did lot conduct the proceeding eventuating
IN he order appealed from know whether
there are grounds Tor the appeal or not the
defendant then being by law Ell titled 20 his
appeal and entitled to stay OF PROCEEDINGS
pending his appeal, ii .any Justice of the Su-
preme Court Will grant him Il certificate of
probable cause, and a settled bill OF exceptions
being In mos cases q es enUal prereq quisite
TO his application to the Jusuces OF tue Su-
preme Court, to deprive him of any op-