The decision was put upon the ground stated, for the purpose of raising the point now before us. If the case comes under section 2060, Code Civ. Proc. the prisoner was entitled to be bailed as a matter of right, for the language is imperative. The judge must make an order fixing the sum in which the applicant shall be admitted to bail pending the appeal, and thereupon, when his appeal is perfected, he must be admitted to bail accordingly.
But the person so entitled to be bailed upon an appeal, is “ a prisoner who stands charged upon a criminal accusation with a bailable offense.” It seems to me quite clear that this does not apply to a person who has been convicted.
The words “ charged ” and “ accusation ” imply that the person is alleged to be guilty, not proved, or adj udged to be so. The complaint of a prosecutor, or an indictment by a Grand Jury, is an accusation, but when the prisoner has been tried and adjudged to be guilty, as the counsel for the people well says, the charge is determined and he stands convicted. The. judgment has taken, the place of the accusation. People ex rel. Phelps v. Oyer and Terminer, 14 Hun, 21-24.
Cases may arise where it wonld seem to be proper that a person convicted should be admitted to bail pending an appeal, and accordingly, section 556 of the Code of Criminal Procedure provides, that after conviction and upon an appeal, the defendant may be admitted to bail. If judgment of imprisonment shall have been given, the condition of the bail bond is that the prisoner will surrender himself in execution of the judgment upon its being affirmed or modified, or upon the appeal being dismissed; from which it would appear, that it is upon an *458appeal from the judgment that bail may be taken, and not upon an appeal from an order dismissing a writ of habeas corpus, and, moreover, it is not a matter of right but lies within the discretion of the judge.
We think the order appealed from should be reversed.
Clements, J., concurs.