Durrant

Upon the authority of In re Jugiro, 140 U. S. 291 ,1 dissent from the order granting the certificate of probable cause.

This is an application for a certificate of probable cause to stay proceedings under an order of the superior court fixing a day for the execution of the judgment of death heretofore pronounced against appellant.

It is made to appear from the papers on file on this appeal, and presented to us in support of this application, that appellant having been brought before the superior court upon November 10, 1897, it was by that tribunal ordered that sentence of death be executed upon him two days thereafter, to wit, upon Friday, November 13, 1897.

In answer to the "statutory demand made upon him to show legal cause why the order should not be made, appellant, by his counsel, offered evidence showing that he had appealed to the supreme court of the United States from an order of the circuit court of the ninth judicial circuit refusing his application for a writ of habeas corpus, and introduced in evidence the records of the circuit court tending to show that this appeal was still pending and undecided. Such an appeal, while pending, stays the hands of the state and of the state authorities. (U. S. Rev. Stats., secs. 763-66; In re Jugiro, 140 U. S. 291 .)

*56 Against the evidence thus…