
    In re OPINION OF THE JUDGES. (In re JAMES R. HARGUS.)
    No. A-8860.
    Jan. 25, 1935.
    (40 Pac. [2d] 692.)
   DAVENPORT, P. J.

The record submitted, to which is attached your request above mentioned, discloses that the said James R. Hargus was charged with murder by information, in the district court of Tulsa county, was tried and convicted. The court fixed the 8th day of December, 1934, as the sentence for the defendant, and on said 8th day of December, 1934, defendant was sentenced to death by electrocution on the 8th day of March, 1935.

Under the Constitution and the laws of this state, any person convicted of a felony may appeal within six months from the date the judgment is rendered.

Under the provisions of section 3192, O. S. 1931, the defendant, if he has taken proper steps, may perfect his appeal to this court. This court has uniformly held that the provisions of section 2786, C. O. S. 1921, now section 3172, O. S. 1931, contemplate an advisory opinion where the appeal has not been taken from the judgment and sentence of death. To render an advisory opinion where the time given for appeal has not yet expired, and where an appeal may be perfected, would be to prejudge the case upon an ex parte proceeding, which might be brought before the court upon an appeal.

This court cannot assume that the defendant will not appeal until the time for such an 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 the 8th day of June, 1935. 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 the sentence until the appeal shall be determined upon its merits.

EDWARDS and DOYLE, JJ., concur.  