
    [No. 10,977.
    Department Two.
    April 29, 1884.]
    EX PARTE FRED WHITTY ON HABEAS CORPUS.
    Cbiwnai, Law—Habeas Coepus—Appeal—Stay oe Execution.—Where an appeal is taken to the Superior Court from a judgment of a Justice’s Court, adjudging the defendant guilty of battery, and sentencing him to imprisonment for a certain term, and defendant is released from custody pending the appeal, he must be recommitted to prison, upon a dismissal of the appeal, notwithstanding no certificate of probable cause was filed.
    Application for writ of habeas corpus. The petitioner was convicted of battery by a Justice’s Court and sentenced to fifty days’ imprisonment. He appealed from the judgment to the Superior Court, and was released from custody pending the appeal. The Superior Court dismissed the appeal, and an order was made recommitting him to prison. The fifty days expired during the pendency of the appeal, and a discharge from imprisonment under the order was asked on the ground that the appeal did not stay the execution because there was no certificate of probable cause.
    W. E. Turner, and L. J. Maddux, for Petitioner.
   The Court.

—If giving notice of appeal and filing a bond would have stayed execution of sentence pending the appeal, it is sufficiently clear that on the dismissal of the appeal the petitioner herein might have been recommitted to prison. This is not disputed. But it is claimed that the appeal did not stay execution because there was no “certificate of probable cause,” such as the Code requires in order to have the appeal operate as a stay. The appeal, however, was duly taken, and the justice, sheriff, and petitioner treated it as a stay of execution during its pend-ency. We think, under such circumstances, the same effect should be given to the dismissal of the appeal as would be given to it if there had been a certificate of probable cause.

Application denied and petitioner remanded.  