Melville Fuller

“ The action of the circuit court in refusing to grant the appeal from its final order of the 11th of November, on the petition then presented, and in declining to entertain the petition of December 31st, cannot be revised on this application; and the inquiry really is whether these petitions furnish any ground for the conclusion that, if the writ were granted, the prisoner's detention would be found illegal. ”

“ Second. That as the appeals from the judgments of April 10th and of December 15th involved federal questions, and were still pending in the state supreme court, the execution of the sentence in accordance with the state statutes would deprive petitioner of the right, privilege, and immunity of suing out writs of error from this court to revise the final judgments of that court when entered on those appeals. ”

“ An appeal to the supreme court from a judgment of conviction, stays the execution of the judgment in all capital cases, and in all other cases upon filing with the clerk of the court in which the conviction was had, a certificate of the judge of such court, or of a justice of the supreme court, that, in his opinion, there is probable cause for the appeal, but not otherwise.'
It was alleged in the petition of November 11th: That theretofore Durrant had been found guilty of murder in the first degree in the superior court of the city and county of San Francisco. ”