Sprague

The prisoner was indicted for murder, and was afterward tried and convicted of murder in the first degree, and adjudged to suffer death. A warrant of execution was thereafter signed by the Judge, attested by the clerk, and delivered to the Sheriff, pursuant to § 1217 of the Penal Code, appointing the 27th day of September, 1878, as the day on which the judgment should be executed. An appeal was taken to this Court from the judgment of conviction, upon the hearing of which the judgment was affirmed, and the Court below directed to fix a day for its execution. The remittitur was duly issued, and was filed in the Court below prior to the 4th day of November, 1879. The District Court, on the day last named, in the absence of the defendant, who was at the time in the jail of the county, made an order directing that the judgment of death be executed on the 5th day of December, 1879. From this order the defendant prosecutes this appeal, and the execution has been stayed pending the appeal. The ground of the appeal is that the Court erred in making the order in the absence of the defendant.

It was claimed at the argument on the part of the people, that the order is not an appealable one;…