In Re Opinion of the Judges

EDWARDS, J.

The record submitted and to which is attached your request above mentioned discloses that the said Roswell Hamilton was charged with murder by information in the district court of Hughes county and that said information was filed in this court on the 21st day of April, 1926, and trial had upon said information which resulted in conviction and a sentence to death by electrocution on the 22nd day of July, 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. It has been the uniform holding of this court that the provisions of section 2786 of the statute of this state contemplate 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 the 20th day of November, 1926. 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 the appeal shall be determined upon its merits.

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