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 filing an affidavit of the publication, the appeal becomes perfected.

§ 526. 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.

§ 529 Stay to be granted only on notice. The certificate mentioned in the last two sections cannot, however,

be granted upon an appeal on a conviction of felony, until such notice as the judge may prescribe, has been given to the district attorney of the county where the conviction was had, of the application for the certificate. But the judge may stay the execution of the judgment, in the meantime.

§ 530. Effect of the stay.-If the certificate, provided in sections 527 and 528, be given, the sheriff must, if the defendant be in his custody, upon being served with a copy of the order, keep the defendant in his custody, without executing the judgment, and detain him to abide the judgment upon the appeal.

§ 531. Id.-If, before the granting of the certificate, the execution of the judgment have commenced, the further execution thereof is suspended, and the defendant must be restored by the officer in whose custody he is, to his original custody.

§ 532. Transmitting papers to appellate court.— Upon the appeal being taken, the clerk, with whom the notice of appeal is filed, must, within ten days thereafter, without charge, transmit a copy of the notice of appeal and of the judgment roll, as follows:

1. If the appeal be to the supreme court, to the clerk of that court, where the next general term in the district is to be held.

2. If it be to the court of appeals, to the clerk of that

court.

Application to amend return should be made to court where judgment was rendered. Rew v. Barker, 2 Cow., 408. On order of appellate court. Rule 3, Ct. App.

CHAPTER II.

DISMISSING AN APPEAL, FOR IRREGULARITY.

SEC. 533. For what irregularity, and how, dismissed. 534. Dismissal for want of return.

ри

time 33. For what irregularity, and how, dismissed. appeal be irregular in a substantial particular,

but not otherwise, the court may, on any day in term, on motion of the respondent, upon five days' notice, served with copies of the papers on which the motion is founded, order it to be dismissed.

§ 534. Dismissal for want of return.-The court may also, upon like motion, dismiss the appeal, if the return be not made, as provided in section 532, unless, for good cause, they enlarge the time for that purpose.

CHAPTER III.

ARGUMENT OF THE APPEAL.

SEC. 535. Appeal to supreme court, how and where brought to argument.

536. Appeal to court of appeals, how brought to argument.
537. Notice of argument to counsel for defendant.
538. Papers, by whom furnished, and effect of omission.
539. Judgment of affirmance may be without argument, if
appellant fail to appear. Reversal, only upon argu-
ment, though respondent fail to appear.

540. Number of counsel to be heard. Defendant's counsel
to close the argument.

541. Defendant need not be present,

535. Appeal to supreme court, how and where brought to argument.—An appeal to the supreme court may be brought to argument by either party, on ten days' notice, on any day, at a general term, held in the department in which the original judgment was given. [Am'd ch. 384 of 1884.]

Appeals and other proceedings in a criminal cause are entitled to preference. Code of Civil Proc, § 790. May be heard on any day in term. Sup. Ct., Rule 43. See Barron v. Peo., 1 Barb., 136.

§ 536. Id.; in court of appeals.-An appeal to the court of appeals may, in the same manner, be brought to argument by either party, on any day in term.

§ 537. Notice of argument.-If a counsel, within five days after the appeal, have given notice to the district attorney, that he appears for the defendant, notice of argument must be served on him, instead of the defendant; otherwise, notice must be served as the court may direct.

§ 538. Papers, by whom furnished.—When the appeal is called for argument, the appellant must furnish the court with copies of the notice of appeal and judgment roll. If he fail to do so, the appeal must be dismissed, unless the court otherwise direct.

See Rule 41, Sup. Ct.

$539. Argument, when necessary.- Judgment of affirmance may be given, without argument, if the appellant fail to appear. But judgment of reversal can only be given upon argument, though the respondent fail to appear.

See Rule 15, Ct. App.; Barron v. Peo., 1 Barb., 136.

§ 540. Number of counsel. Defendant's counsel to close. Upon the argument of the appeal, if the crime be punishable with death, two counsel on each side must be heard if they require it. In any other case, the court may, in its discretion, restrict the argument to one counsel on each side. The counsel for the defendant is entitled to the closing argument.

§ 541. Defendant need not be present. — The defendant need not personally appear in the appellate

court.

CHAPTER IV.

JUDGMENT, UPON APPEAL.

SEC. 542. Court to give judgment, without regard to technical errors, defects or exceptions, not affecting substan

tial rights.

543. May reverse, affirm or modify the judgment, and order a new trial.

544. New trial.

545. Defendant to be discharged on reversal of judgment against him, where new trial is not ordered.

546. Judgment to be executed, on affirmance against the defendant.

547. Judgment of appellate court, how entered and remitted.

548. Papers returned, not to be remitted.

549. Jurisdiction of appellate court ceases, after judgment remitted.