Majority
p. 196[Crim. No. 1258. First Appellate District, Division One. April 6, 1925.] THE PEOPLE, Respondent, v. MERRITT HIGBEE, Appellant.
Headnote
[1] Criminal Law—Conviction of Felont— Appeal—Debatable Questions—Granting of Certificate of Probable Cause.—The trial court having failed to grant -an appellant a certificate of probable cause for an appeal from a judgment of conviction of a felony, the appellate court will issue the certificate where it appears from an examination of the record that the questions raised by the appellant are debatable and not frivolous.(1) 17 C. J., p. 109, n. 71, 71 New, p. 110, n. 83.
1. See 8 Cal. Jur. 550.
APPLICATION for Writ of Probable Cause for appeal from a judgment of the Superior Court of San Mateo County resulting in conviction. George H. Buck, Judge. Application granted.
The facts are stated in the opinion of the court.
Ernest B. D. Spagnoli and Walter F. Lynch for Appellant.
U. S. Webb, Attorney-General, and Wm. F. Cleary, Deputy Attorney-General, for Respondent.
The defendant in this case was convicted in the superior court of San Mateo County of a felony, to wit, burglary of the second degree, and was sentenced to be imprisoned in the state prison. He has appealed from the judgment of conviction to this court and the appeal has been perfected. The trial court, on application by appellant, refused to grant a certificate of probable cause for the appeal, denied appellant a stay of execution until such time as the record on appeal should be filed in this court, and appellant has been removed to the state prison as a result of said judgment and sentence.
p. 197
In the record before us several matters in the proceedings leading to his conviction are indicated by appellant upon which he has based his appeal and which are claimed by him to constitute prejudicial error. [1] From examination of this record we are convinced that the questions raised by appellant are debatable and not frivolous, and, therefore, the trial court having failed to grant the relief to which appellant was entitled, it is ordered that a certificate of probable cause for appeal in this cause be issued.
Tyler, P. J., and Knight, J., concurred.