People v. Clark

It appears by an affidavit filed herein that the defendant above named has appealed to this court from a judgment of imprisonment in the state prison imposed by the superior court of the city and county of San Francisco, that the judge before whom he was tried is absent from said city and county on vacation, that the presiding judge of said court is also absent, and that the judge temporarily acting in his place refuses to grant any stay of proceedings pending the return of said trial judge. The result is, that the defendant is compelled to apply here for relief to which, he was clearly entitled on application to the superior court, and that unless he can obtain a stay of proceedings here^he must be deprived of an undoubted statutory right—the right, that is to say, of having it determined by the trial judge, or by a justice of this court, whether there is probable cause for his appeal, and, in case it is found that there is such probable cause, to have the proceedings stayed. (Pen. Code, sec. 1243; Matter of Adams, 81 Cal. 163 .)

It is beyond question that a part, and a very important part, of the right of appeal, in cases of this kind, is the right to a stay of proceedings in a…