
    In re OPINION OF THE JUDGES. In re GEORGE CALL.
    No. A-6462.
    Opinion Filed Dec. 31, 1926.
    (251 Pac. 757.)
   EDWARDS, J.

The.record submitted and to which is attached your request above mentioned discloses that the said George Call was charged with murder by information in the district court of Pittsburg county, and that said information was filed in said court on May 24, 1926.

Under the Constitution and laws of this state, any person convicted of a felony may appeal within six months from the time judgment is rendered. Section 2808, Comp. Stat. 1921. By the provisions of this section of the statute, the defendant, if he takes proper steps, may perfect an appeal to this court within six months from the date of sentence. It has been the uniform holding of this court that the .provision of section 2786 of the statute of this state contemplates an advisory opinion where an appeal has not been taken from the judgment and sentence of death. To render an advisory opinion, where an appeal has been taken or where the time given for appeal has not expired and appeal might be perfected, would be to prejudge a case upon an ex parte proceeding, which might later be brought before the court upon an appeal. We cannot assume that the defendant will not appeal until the time for such appeal shall have expired or the right to appeal shall have been expressly waived. In order that the defendant shall not be deprived of his right to appeal within six months, the execution of the sentence of death should be postponed to some date after May 16, 1927. If, in the meantime, the appeal is perfected and filed in this court, such appeal will automatically give the accused the right to a further suspension of the execution of sentence until appeal shall be determined upon its merits.

BESSEY, P. J., and DOYLE, J., concur.  