the confinement of convicts awaiting execution of their sentence.

§ 507. Id.; Who to be present.-It is the duty of the sheriff or under-sheriff of the county to be present at the execution, and to invite the presence, by at least three days' previous notice, of the county judge, district attorney, clerk and surrogate of the county, together with two physicians, and twelve reputable citizens of full age, to be selected by the sheriff or under-sheriff. The sheriff or under-sheriff must, at the request of the criminal, permit such ministers of the gospel, priests or clergymen of any religious denomination, not exceeding two, and such of the immediate relatives of the convict as he desires, being of full age, to be present at the execution; and such officers of the prison, deputy sheriffs, and constables or marshals must attend, as the sheriff or under-sheriff deems expedient to have present. Besides the persons designated in this section, no one shall be permitted to be present at the execution.

§ 508. Id. ; certificate after execution.-The sheriff or under-sheriff attending the execution must prepare and sign a certificate, setting forth the time and place thereof, and that the convict was then and there executed, in conformity to the sentence of the court, and the provisions of this Code and must procure the certificate to be signed by the county judge, surrogate and district-attorney, if they were present, and by the physicians and citizens selected by the sheriff who witnessed the execution. He must cause the certificate to be filed in the office of the clerk of the county

§ 509. Id.; When inflicted by sheriff in an adjoining county. If in any county there is not a county jail for the confinement of criminal prisoners, or the jail has become unfit or unsafe for the confinement of prisoners, or is destroyed by fire or otherwise, and the county judge of the county has, according to law, designated the jail of a contiguous county for the confinement of the prisoners of the county, the sheriff of the county in

which a convict sentenced to death is confined must attend, upon the day appointed for the execution of the sentence, at the jail of his county, and there conduct the proceedings and execute the sentence, in all respects as if the jail were situated in the county where the conviction took place.

CHAPTER II.

SECOND OFFENSES, HABITUAL CRIMINALS AND SPECIAL PENAL

DISCIPLINE.

SEC. 510. When convict may be adjudged an habitual criminal. 511. Judgment accordingly, how entered, etc.

512. Persons so adjudged when liable to arrest and punish

ment.

513. Id.; evidence of character on subsequent trial.
514. Id.; always liable to search, etc.

§ 510. When convict may be adjudged an habitual criminal.—When a person is hereafter convicted of a felony, who has been, before that conviction, convicted in this state of any other crime, he may be adjudged by the court, in addition to other punishment inflicted upon him, to be an habitual criminal. A person convicted of a misdemeanor, who has been already five times convicted in this state of a misdemeanor may be adjudged by the court in addition to, or instead of, other punishment, to be an habitual criminal.

See Peo. v. McCarthy, 45 How. Pr., 97.

A

§ 511. Judgment accordingly, how entered, etc.— The judgment specified in the last section must be entered in a separate book, kept for that purpose. copy of the entry, duly certified by the clerk of the court, is proof of the judgment, and a copy, so certified, must be forthwith transmitted to the police department of each city, and to the district attorney of each county in the state.

§ 512. Persons so adjudged when liable to arrest and punishment.-A person who has been adjudged an habitual criminal is liable to arrest summarily with or without warrant, and to punishment as a disorderly

person, when he is found without being able to account therefor, to the satisfaction of the court or magistrate, either,

1. In possession of any deadly or dangerous weapon, or of any tool, instrument or material, adapted to, or used by criminals for, the commission of crime, or

2. In any place or situation, under circumstances giving reasonable ground to believe that he is intending or waiting the opportunity to commit some crime.

Not entitled to jury trial. Peo. v. McCarthy, 45 How. Pr., 97.

§ 513. Id.; evidence of character on subsequent trial. A person who, having been adjudged an habitual criminal, is charged with a crime committed thereafter, may be described in the complaint, warrant or indictment therefor, as an habitual criminal; and, upon proof that he has been adjudged to be such, the prosecution may introduce, upon the trial or examination, evidence as to his previous character, in the same manner and to the same extent as if he himself had first given evidence of his character and put the same in issue.

§ 514. Id.; always liable to search, etc. — The person and the premises of every one who has been convicted and adjudged an habitual criminal shall be liable at all times to search and examination by any magistrate, sheriff, constable, or other officer, with or without warrant.

Is forcible examination of person constitutional, Quære. See Peo. v. McCoy, 45 How. Pr., 216.

CHAPTER

TITLE XI.
Of Appeals.

I. Appeals, when allowed, and how taken.
II. Dismissing an appeal, for irregularity.
III. Argument of the appeal.

IV. Judgment upon appeal.

CHAPTER I.

APPEALS, WHEN ALLOWED, AND HOW TAKEN.

SEC. 515. Writs of error and of certiorari, abolished; appeal

substituted.

516. Parties, how designated on appeal.

517. In what cases appeal may be taken by defendant.
518. In what cases, by the people.

519. In what cases, generally.

520. Appeal, a matter of right.

521. Must be taken within one year after judgment.
522-525. Appeal, how taken.

526. Appeal by the people, not to stay or effect the judg-
ment until reversed.

527. Stay of proceedings, on appeal to supreme court from judgment of conviction.

528. Stay, upon appeal to court of appeals from judgment of supreme court, affirming judgment of conviction. 529. Certificate of stay not to be granted, but on notice to district attorney.

530, 531. Effect of the stay.

532. Transmitting the papers to the appellate court.

§ 515. Writs of error and certiorari abolished; appeal substituted.-Writs of error and of certiorari in criminal actions and proceedings and special proceedings of a criminal nature, as they have heretofore existed, are abolished; and hereafter the only mode of reviewing a judgment or order in a criminal action or proceeding, or special proceeding of a criminal nature, is by appeal. [Am'd ch. 372 of 1884]

Peo. etc. v. Carney, 1 N. Y. Cr., 270; Peo. v. Burleigh, 1 N. Y. Cr., 447.

§ 516. Parties, how designated on appeal. The party appealing is known as the appellant, and the adverse party as the respondent. But the title of the action is not changed, in consequence of the appeal.

§ 517. When defendant may appeal.— An appeal to the supreme court may be taken by the defendant, from the judgment on a conviction after indictment, and upon the appeal, any actual decision of the court in an intermediate order or proceeding forming a part of the judgment roll, as prescribed by section 485, may be reviewed. Supreme Court has no jurisdiction on appeal except as given by statutes. Shufflin v. Peo., 4 Hun, 16. Appeal in criminal contempt. Peo. v. Dwyer, 90 N. Y., 402; s. c., 27 Hun, 548; Peo. v. Gilmore, 88 N. Y. 626. Order denying motion in arrest of judgement appealable. Peo. v. Bork, 1 N. Y. Cr., 393.

§ 518. When the people may.-An appeal to the supreme court may be taken by the people in the following cases and no other:

1. Upon a judgment for the defendant, on a demurrer to the indictment.

2. Upon an order of the court, arresting the judgment. A new trial cannot be granted, when defendant has been acquitted of a felony. Peo. v. Comstock, 8 Wend., 549. See Peo. v. Corning, 2 N. Y., 9.

§ 519. In what cases generally.- An appeal may be taken from the judgment of the supreme court to the court of appeals, in the following cases, and no other :

1. From a judgment affirming or reversing a judgment of conviction;

2. From a judgment affirming or reversing a judgment for the defendant, on a demurrer to the indictment, or on an order of the court arresting the judgment.

3. From a final determination affecting the substantial right of a defendant.

Are preferred causes. Rule 11, Ct. App., and first in order. Rule 20, id.

520. Appeal, a matter of right.—All appeals, provided for in this chapter, may be taken as a matter of right.

§ 521. When to be taken.-An appeal must be taken within one year after the judgment was rendered.

§ 522. Appeal, how taken.-An appeal must be taken, by the service of a notice in writing on the clerk with whom the judgment roll is filed, stating that the appellant appeals from the judgment.

§ 523. Id. If the appeal be taken by the defendant a similar notice must be served on the district attorney of the county in which the original judgment was rendered.

§ 524. Id.-If it be taken by the people, a similar notice must be served on the defendant, if he be a resident of, or imprisoned in the city or county; or if not, on the counsel, if any, who appeared for him on the trial, if he reside or transact his business in the county. If the service cannot, after due diligence, be made, the appellate court, upon proof thereof, may make an order for the publication of the notice, in such newspaper, and for such time as it deems proper.