People v. Allan

The defendant, after trial and conviction upon a charge of making, uttering, publishing, and passing a fictitious check in violation of section 476 of the Penal Code, moved the trial court for an arrest of judgment and for a new trial. Said motions were denied, whereupon defendant was sentenced to imprisonment in the state prison at Folsom. Notice of appeal was given and since then defendant has complied with the hecéssary legal requirements to perfect said appeal. He also applied to the trial court for a writ of probable cause, which application was denied. A similar application is now presented to this court. [1] The law is well settled that where an appeal is not clearly and palpably frivolous and vexatious, but presents debatable questions upon which there may be honest difference of opinion in regard to the existence of prejudicial error in the proceedings leading to the conviction, a writ of probable cause should be granted (People v. Gallanar, 144 Cal. 656 [ 79 Pac. 378 ]; In re Adams, 81 Cal. 163 [ 22 Pac. 547 ]; People v. Valencia, 45 Cal. 304 ; People v. Ramirez, 63 Cal. App. 510 [ 219 Pac. 73 ]; In the Matter of Mayen, 49 Cal. App. 531 [ 193 Pac. 813 ]; People v. Clinton et al., 72 Cal. App. 88 [ 236 Pac. 929 ]). [2] The record here reveals the exclusion of certain evidence sought to be adduced by the defendant which, it was claimed, had a bearing upon the question of the genuineness of the check upon which the charge was based. Irrespective of the question of whether the rulings of the trial court in connection with the exclusion of such evidence amount to probable cause for a reversal of the judgment, the rejection of said evidence does, in our opinion, constitute probable cause for appeal. It follows that the application for the writ of probable cause should be granted and the execution of the judgment stayed until a final determination'of said appeal. It is so ordered,

Tyler, P. J., and Cashin, J., concurred.