The record submitted, and to which is attached your request for opinion, discloses that the defendant, Claude (Blackie) Hager, was charged with murder in the district court of Ottawa county. Upon a trial of said charge he was convicted, and sentence of death was rendered February 18, 1929. Under the Constitution and laws of this state, any person convicted of felony may appeal within six months from the time judgment is rendered. Section 2808, Comp. Stat. 1921. This time does not expire until August 18, 1929, but on April 30, 1929, defendant filed in this court his appeal from the judgment and sentence aforesaid. It has been the uniform holding of this court that the provisions of section 2786 of the statute 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 perfected, and before the same has been briefed, argued, and submitted, would be to prejudge a case upon an ex parte proceeding. *Page 42
The appeal having been lodged in this court, such appeal automatically gave the accused a right to suspension of execution of the sentence of death until his appeal has been determined. An order staying execution has been made by this court, and the case will be duly reviewed on the appeal.
DAVENPORT and CHAPPELL, JJ., concur.