« AnteriorContinuar »
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.
SECOND OFFENSES, HABITUAL CRIMINALS AND SPECIAL PENAL
SEC. 510. When convict may be adjudged an habitual criminal.
511. Judgment accordingly, how entered, etc.
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.
511. Judgment accordingly, how entered, etc.The judgment specified in the last section must be entered in a separate book, kept for that purpose. A 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.
II. Dismissing an appeal, for irregularity.
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. 522–5:25. 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 slay not to be granted, but on notice to
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, decided before am’d't of 1884. Conviction after upon indictment before code, reviewed by appeal. 1 N. Y. Cr., 456.
§ 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. Shufilin 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; Peo. v. Dempsey, 2 N. Y. Cr., 117.
§ 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. What brought upon appeal by the people. 16 W. Dig., 521 ; 17 id., 127.
§ 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.
$ 525. When appeal is perfected.- At the expiration of the time appointed for the publication, on tiling an attidavit of the publication, the appeal becomes perfected.
§ 626. No stay on appeal by the people.-An appeal taken by the people, in no case stays or affects the operation of a judgment in favor of the defendant, until the judgment is reversed.
§ 527. Stay on appeal from conviction.-An appeal to the supreme court, from a judgment of conviction, or other determination from which an appeal can be taken, stays the execution of the judgment or determination upon filing, with the notice of appeal, a certificate of the judge who presided at the trial, or of a judge of the supreme court, that in his opinion there is reasonable doubt whether the judgment should stand, but not otherwise, except that when the judgment is of death, the appeal stays the execution of course until the determination of the appeal. And the appellate court may order a new trial if it be satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below.
Under what circumstances stay should be granted. Sullivan v. Peo., 1 Park., 347 ; Peo. v. Hendrickson, ib., 396 ; Peo. v. Lohman, 2 Barb., 450 ; Peo. v. Folmsbee, 60 ib., 480'; Peo. v. O'Reilly, 61 How. Pr., 8, 15. No exception. Peo. v. Williams, 29 Hun, 520 ; Peo. v. Mangano, ib., 259. Appeal to court of appeals when not covered by. '17 W. Dig. , 127. See Peo. v. Dargenconi, 2 N. Y. Cr., 267.
$ 528. Stay upon appeal from affirmance of conviction.
An appeal to the court of appeals, from a judgment of the supreme court, affirming a judgment of conviction, stays the execution of the judgment appealed from, upon filing, with the notice of appeal, a certificate of a judge of the court of appeals, or of the supreme court, that, in his opinion, there is reasonable doubt whether the judgment should stand, but not otherwise. Except that when the judgment is of death, the appeal stays the execution, of course, until the determination of the appeal.
§ 629 Stay to be granted only on notice.—The certificate mentioned in the last two sections cannot, however,