Keyes

The defendant was convicted of a criminal charge and has appealed to this court from the judgment rendered against him. Meanwhile he is confined in the county jail, and he now moves that he be admitted to bail pending the determination of his appeal, because of threatened danger to his health by reason of his incarceration.

Respondent contends that we are without jurisdiction to grant the motion for the reason that section 1291 of the Penal Code provides that a “defendant may be admitted to bail upon an appeal” by an order “made by any magistrate having the power to issue a writ of habeas corpus, or by the magistrate before whom the trial was had,” while section 808 of the same code, providing what persons are magistrates, does not set down justices of the District Court of Appeal in the list of justices and judges contained in it. We find it unnecessary to decide this question.

Granting for the sake of argument that we possess the power here invoked by appellant, it can be exercised only where “there is such imminence of dangerous results to the life or health of the defendant as to obviously require his removal from the county jail” at the time his application for admission to…