Ephraim

Application for an order admitting defendant to bail pending appeal.

Petitioner was informed against by the district attorney of Alameda County with the crime of felony, to wit, embezzlement.

He was tried and found guilty.

Thereafter on March 7, 1925, an appeal was duly taken from such conviction and on March 9, following, the superior court made and filed its certificate of probable cause. Thereafter application was made to the superior court for an order of bail pending .the appeal. The petition alleges that the court denied the application upon the sole ground that it was not the practice of said court to allow bail in cases where the matter was one of discretion with the court.

Assuming that the motion was properly presented to the lower -court, the denial thereof was in effect an exercise of this discretion. Section 1272 of the Penal Code declares when'a defendant, after conviction and pending appeal, may be admitted to bail; that section provides that bail may be allowed (1) As a matter of right, when the appeal is from a judgment imposing a fine only; (2) As a matter of right, when the appeal is from a judgment imposing imprisonment in cases of misdemeanor; (3) As a…