People v. McNulty

Citations

• 95 Cal. 594
• 30 P. 963
• 1892 Cal. LEXIS 870

Syllabus

<p>Appeal—Dismissal — Frivolousness. —An appeal will not be dismissed upon motion therefor, upon the ground that it is frivolous. To dismiss an appeal is to refuse to consider its merits, and therefore there can be no dismissal of an appeal on the ground that it is without merit.</p> <p>Id.—Appeal in Criminal Case — Grounds of Dismissal.—Under section 1248 of the Penal Code, the supreme court is forbidden to dismiss an appeal in a criminal case, unless the appeal itself is irregular in some substantial particular, to be determined by reference to the order or judgment appealed from, and the steps taken to perfect the appeal.</p> <p>Id.—Appealable Order—Criminal Law — Homicide — Order Fixing Time and Place for Execution. — An order made after the affirmance of a capital conviction, fixing the time and place of execution, is an appealable order, and an appeal therefrom cannot be considered upon its merits upon a motion to dismiss, or be dismissed upon the ground that it is frivolous.</p> <p>Id. — Stay of Execution — Certificate of Probable Cause. — An appeal from such order does not ipso facto stay the execution of the sentence; but in order to effect such a stay, a certificate of probable cause for the appeal must be obtained from either a judge of the trial court or of the appellate court.</p>