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TITLE III.

OF APPEALS FROM COURTS OF SPECIAL SESSIONS.

SECTION 749. Judgment of special sessions, reviewable only upon appeal. 750. Appeal, for what causes allowed.

751. Appeal, how taken.

752. How allowed.

753. Discharge of defendant from custody, upon undertaking.
754. Undertaking, when and with whom filed.

755. Delivery of affidavit, and allowance of appeal, to magistrate or
clerk of police court, within five days after allowance.

756. Return, when and how made.

757. Compelling return.

758. Ordering and compelling further or amended return.

759. Appeal, by whom and how brought to argument.

760. If not brought to argument, as provided in last section, to be dismissed, unless continued for cause shown.

761. Service of return on district attorney, and consequences of failure.
762. If brought to hearing by defendant, appeal must be argued,
thought no one oppose, etc.

763. Appeal to be heard on original return.
764. What judgment may be rendered.

765. Judgment to be entered on the minutes.

766. Order upon judgment for affirmance.

767. Order upon judgment of reversal.

768. If new trial ordered, to be had in court of sessions; proceedings thereon.

769. Proceedings to carry judgment upon appeal into effect, to be had in court of sessions.

770. On judgment of court of sessions, defendant may appeal to supreme court; his admission to bail.

771. Judgment of supreme court upon appeal, final.

772. Proceedings to carry into effect judgment of supreme court.

§ 749. (Amended 1884.) Judgment of special sessions reviewable only upon appeal.-A judgment upon conviction, rendered by a court of special sessions, police court, police magistrate, or justice of the peace, in any criminal action or proceedings or special proceeding of a criminal nature, may be reviewed by the court of sessions of the county, upon an appeal as prescribed by this title, and not otherwise; and any appeal heretofore taken and allowed from a judgment of any police court or police magistrate in the manner that appeals are directed to be taken and allowed by this title and now pending undetermined in any court of this state, are hereby declared to be legal and valid and of the same force and effect as if taken after the passage of

this act.

(a) Prosecutor cannot appeal.-The prosecutor, against whom judg ment is rendered for costs under § 719 post, cannot appeal from such judgment to the court of sessions. (People v. Norton, 2 N. Y. Cr. R., 324.

(b.) The regularity of the proceedings of a court of limited jurisdiction is presumed, and when there is presented to a court or magistrate exercising a summary jurisdiction, evidence of an essential fact, the judgment or decision thereof upon the fact cannot be overhauled in a collateral proceeding, but is conclusive until reversed upon appeal. (People ex rel. Van Riper v. N. Y. Catholic Protectory, 11 N. Y. State Rep., 155.)

§ 750. (Amended 1882). Appeal, for what causes allowed.— An appeal may be allowed for an erroneous decision or de termination of law or fact upon the trial.

3 R. S., 6th Ed., 1013, § 5

§ 751. Appeal, how taken.-For the purpose of appealing, the defendant, or some one on his behalf, must, within ten days after the judgment, make an affidavit, stating the fact showing the alleged errors in the proceedings or conviction complained of, and must, within that time, present it to the county judge or a judge of the supreme court, or in the city and county of New York to the recorder or city judge, or judge of general sessions of that city, and may apply thereon for the allowance of the appeal.

(a) The ground of appeal must appear in the affidavit.-A ground not alleged in the affidavit cannot be heard upon appeal. (People ex rel. Baker v. Beatty, 4 N. Y., Cr. R., 287.

§ 752. How allowed.-If, in the opinion of the judge, it is proper that the question arising on the appeal should be decided by the court of sessions, he must indorse on the affidavit an allowance of the appeal to that court.

Id., § 58.

§ 753. Discharge of defendant from custody, upon undertaking.— Upon allowing the appeal, the judge may take from the defendant a written undertaking, with such sureties as he may approve, that the defendant will abide the judgment of the court of sessions upon the appeal; and may thereupon order that he be discharged from imprisonment, on service of the order upon the officer having him in custody, or if he be not in custody, that all proceedings on the judgment be stayed.

Id., §§ 64, 65.

§ 754. Undertaking, when and with whom filed.-The undertaking upon the appeal must be immediately filed with the clerk of the court of sessions.

Id., § 66.

§ 755. Delivery of affidavit, and allowance of appeal, to magistrate or clerk of police court, within five days after allowance.-The affidavit and allowance of the appeal must be delivered to the magistrate who tried the action, or, if in the city and county of New York, to the clerk of the court of special sessions, within five days after the allowance of the appeal; and when so delivered, the appeal is deemed taken.

Id., § 59.

§756. Return, when and how made.-The magistrate or court rendering the judgment, must make a return to all the matters stated in the affidavit, and must cause the affidavit and return to be filed in the office of the clerk of the court of sessions, within ten days after the service of the affidavit and allowance of the appeal.

(a) The return and affidavit serve as bill of exception.-The affidavit and return make up a sort of bill of exceptions, which state only so much of

the proceedings as are necessary to give point to the alleged errors stated in the affidavit. (People ex rel. Baker v. Beatty, 4 N. Y. Cr. R., 287.)

$ 757. Compelling return.-If the return be not made within the time prescribed in the last section, the court of sessions, or the presiding judge thereof, may order that a return be made within a specified time which may be deemed reasonable; and the court may, by attachment, compel a compliance with the order.

§ 758. Ordering and compelling further or amended return.—If the return be defective, a further or amended return may be ordered, and the order may be enforced in the manner provided in the last section.

Id., § 61.

§ 759. Appeal, by whom and how brought to argument.-When the return is made, the appeal may be brought to argument by the defendant, on any day in term, upon a notice of not less than five days before the term, to the district attorney of the county.

Id., §§ 62, 73.

§ 760. If not brought to argument, as provided in last section, to be dismissed, unless continued for cause shown.-If the defendant omit to bring the appeal to argument, as provided in the last section, the court must dismiss it, unless it continue the same, by special order for cause shown.

Id., § 71.

§ 761. Service of return on district attorney, and consequences of failure. The defendant must serve upon the district attorney, a copy of the return, with or before the notice of argument. If he fail to do so, the appeal must be dismissed, upon proof of the failure, unless the court otherwise direct.

Id., § 73.

§ 762. If brought to hearing by defendant, appeal must be argued, though no one oppose, etc.--If the appeal be brought to hearing by the defendant, it must be argued, though no one appear to oppose; but if brought on by the district attorney, he may take judgment of affirmance, unless the defendant appear to argue the appeal.

See Rule 21, Ct. Appeals.

§ 763. Appeal to be heard on original return.-The appeal must be heard upon the original return; and no copy thereof need be furnished for the use of the court.

764. (Amended 1882.) What judgment may be rendered.After hearing the appeal the court must give judgment without regard to technical errors or defects which have not prejudiced the substantial rights of the defendants, and may render the

judgment which the court below should have rendered, or may, according to the justice of the case, affirm or reverse the judg ment, in whole or in part, as to all or any of the defendants, if there be more than one, or may order a new trial, or may modify the sentence.

§ 765. Judgment to be entered on the minutes.-When judgment is given upon the appeal, it must be entered upon the minutes.

§ 766. Order upon judgment for affirmance.-If the judgment be affirmed, the court must direct its execution, and if the defendant be discharged on bail, after the commencement of the execution of a judgment of imprisonment, must commit him to the proper custody for the remainder of his term of imprison

ment.

§ 767. Order upon judgment of reversal.-If the judgment be reversed, and the defendant be imprisoned in pursuance of the judgment of the police court, the court of sessions must order him to be discharged.

§ 768. If new trial ordered, to be had in court of sessions; proceedings thereon.—If a new trial be ordered, it must be had in the court of sessions, in the same manner as upon an issue of fact on an indictment; and that court may proceed to judgment and execution, as in an action prosecuted by indictment.

$769. Proceedings to carry judgment upon appeal into effect, to be had in court of sessions.-If any proceedings be necessary to carry the judgment upon the appeal into effect, they must be had in the court of sessions.

§ 770. On judgment of court of sessions, defendant may appeal to supreme court; his admission to bail. If the judgment on the appeal be against the defendant, he may appeal therefrom to the supreme court, in the same manner as from a judgment in an action prosecuted by indictment, and may be admitted to bail upon the appeal, in like manner.

§ 771. Judgment of supreme court upon appeal, final.—The judgment of the supreme court upon the appeal is final.

§ 772. Proceedings to carry into effect judgment of supreme court-The same proceedings must be had, to carry into effect the judgment of the supreme court upon the appeal, as if it had been taken upon a judgment in an action prosecuted by indictment.

PART VI.

OF SPECIAL PROCEEDINGS OF A CRIMINAL NATURE.

TITLE I. OF CORONERS' INQUESTS, AND THE DUTIES OF

CORONERS.

II. OF SEARCH WARRANTS.

III. OF THE OUTLAWRY OF PERSONS CONVICTED OF

TREASON.

IV. OF PROCEEDINGS AGAINST FUGITIVES FROM JUS

TICE.

V. OF PROCEEDINGS RESPECTING BASTARDS.

VI. OF PROCEEDINGS RESPECTING VAGRANTS.

VII. OF PROCEEDINGS RESPECTING DISORDERLY PER

SONS.

VIII. OF PROCEEDINGS RESPECTING THE SUPPORT OF
POOR PERSONS.

IX. OF PROCEEDINGS RESPECTING MASTERS, APPREN

TICES AND SERVANTS.

X. OF CRIMINAL STATISTICS.

XI. MISCELLANEOUS PROVISIONS RESPECTING PRO-
CEEDINGS OF A CRIMINAL NATURE.

TITLE I.

OF CORONERS' INQUESTS, AND THE DUTIES OF CORONERS.

SECTION 773. In what cases coroner to summon a jury; number of jurors to be summoned.

774. Jury to be sworn.

775. Witnesses to be subpoenaed.

776. Compelling attendance of witnesses, and punishing their dis

obedience.

777 Verdict of the jury.

778. Testimony, how taken and filed.

779 If defendant arrested before inquisition filed, depositions to be delivered to magistrate, and by him returned.

780. Warrant for arrest of party charged by verdict.

781. Form of warrant.

782. Warrant, how executed.

783. Proceedings of magistrate, on defendants being brought before
him.

784. Clerk with whom inquisition is filed, to furnish magistrate with
copy of the same and of testimony returned therewith.
785. Coroner to deliver money or property found, on deceased, to
county treasurer.

786. County treasurer to place money to credit of county; and to sell
other property and place proceeds to credit of county.

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