Majority
p. 340SUPREME COURT—APP. DIVISION—FIRST DEPT., May, 1912. THE PEOPLE EX REL. MARTIN F. HUBERT v. HARRY M. KAISER AS WARDEN, ETC. (150 App. Div. 915.)
Headnote
(1) Stay op pboceedings pending appeal in habeas cobpus.[1]Where a prisoner is held under conviction of a court of competent jurisdiction and is serving out his sentence under such judgment, he is not entitled to a stay of proceedings pending the perfection of his appeal from an order remanding him to the custody of the warden of a State prison, made on the return of a writ of habeas corpus.
(2) Ball pending appeal—When not allowed.
A convicted prisoner, serving his sentence, is not a person “ charged with any offense” under the provisions of the Code respecting bail pending appeal, and therefore cannot be admitted to bail pending his appeal from an order denying a writ of habeas corpus.
Application for a stay of proceedings from an order of this court dismissing the writ of habeas corpus and remanding the prisoner to the State’s prison pending an appeal to the Court of Appeals, and to admit the prisoner to bail.
This application is made under section 2062. of the Code of Civil Procedure, which provides that “ where a prisoner, who stands charged with an offense, specified in the last section, has perfected an appeal, to the Court-of Appeals, from a final order of the Sfupreme Court, affirming an order refusing his discharge or reversing an order granting his discharge; the court, from whose order the appeal is taken, or a judge hereof, must,
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upon Ms application, admit him to bail. as prescribed in the last section.” The prisoner in tMs case does not stand charged with an offense specified in section 2060' or section 2061 of the Code of Civil Procedure. Section 2060' provides that “ where a prisoner, who stands charged, upon a criminal accusation, with a bailable offense, has perfected, or intends to take, an appeal from a final order dismissing the proceedings, remanding him, or otherwise refusing to discharge him,” etc. Section 2061 provides for a recognizance upon admitting a prisoner who thus stands charged to bail. The prisoner in this case does not stand charged with any offense. He is held under the conviction of a court of competent jurisdiction, and is serving out his sentence under such judgment. We, therefore, think the court has no power to admit the prisoner to bail pending the appeal. Ho reason is shown why an order staying the proceedings should be granted. If the judgment of this court is correct the proper place for the prisoner is in State’s prison serving out his sentence. If the Court of Appeals should reverse the order of this court it can discharge the prisoner from the State’s prison as well as from the county jail. The application is, therefore, deMed.
Present—Ingraham, P. J., McLaughlin, Clarke, Scott- and Dowling, JJ.
Application denied. Order to be settled on notice.