I dissent from the above holding. I would not object to such a holding if, in order to make it, we had receded from the doctrine of Lloyd v. Superior Court, 208 Cal. 622 [283 P. 931], but if this case stands Bost is entitled to his liberty also. The only distinction between the cases is that in the Lloyd case a certificate of probable cause under section 1243 of the Penal Code was issued to him and he remained in the county jail until his conviction was affirmed. In the present case the defendant accepted the time of appeal as a part of his sentence if the appeal were denied and went into the custody of the warden instead of remaining with the sheriff. At any time prior to the coming down of the remittitur the superior court could have granted this certificate and withdrawn the prisoner from the custody of the warden. (Sec. 1245, Pen. Code.) This was doubtless deemed unnecessary as prior to the time of affirmance the prisoner had already been returned to the custody of the sheriff. There is, therefore, but a technical difference between these cases, with the odds, I think, in favor of Bost, who accepted and did not merely bemoan his fate. *Page 156