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§ 542. Court to disregard errors, not affecting substantial rights. — After hearing the appeal, the court must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.

Illegal evidence which may have prejudiced the prisoner is ground for new trial. Lambert v. Peo., 6 Abb. N. C., 181. See Cox v. Peo., 80 N. Y., 500. Must be exception to bring up questions for review. Brotherton v Peo., 75 N. Y., 159. See Lattimer v. Hill, 8 Hun, 171; Clnte v. Emmerick, 12 ib., 504; Moett v. Peo., 85 N. Y., 373'; Irving v. Peo., 2 N. Y. Cr., 50. Formal defects. Schumpf v. Peo., 14 Hun, 10; Peo. v. Osterhout, 20 W. Dig., 294; Peo. v. Burns, 2 N. Y. Cr., 427; Peo. v. Conroy, ib., 565.

§ 543. May reverse, affirm or modify. — Upon hearing the appeal the appellate court may, in cases where an erroneous judgment has been entered upon a lawful verdict, correct the judgment to conform to the verdict, in all other cases they must either reverse or affirm the judgment appealed from, and in cases of reversal, may, if necessary or proper, order a new trial. When new trial should not be ordered. Foot v. Etna L. Ins. Co., 61 N. Y., 571; Sawyer v. Peo., 27 Hun, 286. Cannot entertain original motion. Ostrander v. Peo., 28 Hun, 38. See Peo. v. Hovey, 30 ib., 354.

§ 544. New trial. When a new trial is ordered, it shali proceed in all respects as if no trial had been had.

§ 545. Defendant to be discharged on reversal if new trial is not ordered. — If a judgment against the defendant be reversed, without ordering a new trial, the appellate court must direct, if he be in custody, that he be discharged therefrom, or if he be admitted to bail, that his bail be exonerated, or if money be deposited instead of bail, that it be refunded to the defendant.

§ 546. Judgment to be executed, on affirmance against the defendant. On a judgment of affirmance against the defendant, the original judgment must be carried into execution, as the appellate court may direct, and if the defendant be at large, a bench warrant may be issued for his arrest. If a judgment be corrected, the corrected judgment must be carried into execution as the appellate court may direct.

Resentence in capital case.

Moett v. Peo., 85, N. Y., 373.

§ 547. Judgment of appellate court, how entered and remitted. When the judgment of the appellate court is given, it must be entered in the judgment book,

and a certified copy of the entry forthwith remitted to the clerk with whom the original judgment roll is filed, or, if a new trial be ordered in another county, to the clerk of that county, unless the judgment be rendered in the absence of the adverse party, in which case, the court may direct it to be retained, not exceeding ten days. See Rule 15, Ct. App.

§ 548. Papers returned to be remitted. The decision of the court and the return shall be remitted to the court below in the same form and manner as in civil actions. [Am'd ch. 505 of 1884.]

§ 549. When jurisdiction of appellate court ceases. After the certificate of the judgment has been remitted as provided in section 547, the appellate court has no further jurisdiction of the appeal, or of the proceedings thereon; and all orders, which may be necessary to carry the judgment into effect, must be made by the court to which the certificate is remitted, or by any court to which the cause may thereafter be removed.

TITLE XII.

Of Miscellaneous Proceedings.

CHAPTER I. Bail.

II. Compelling the attendance of witnesses.
III. Examination of witnesses, conditionally.
IV. Examination of witnesses, on commission.
V. Inquiry into the insanity of the defendant, before
or during the trial, or after conviction.

VI. Compromising certain crimes, by leave of the

court.

VII. Dismissal of the action, before or after the indict-
ment for want of prosecution, or otherwise.
VIII. Remitting the punishment, in certain cases.
IX. Proceedings against corporations.

X. Entitling affidavits.

XI. Errors and mistakes, in pleadings and other proceedings.

XII. Disposal of property, stolen or embezzled.

XIII. Reprieves, commutations and pardons.

CHAPTER I.

BAIL.

ARTICLE I. In what cases the defendant may be admitted to
Bail.

II. Bail, upon being held to answer, before indictment.
III. Bail, upon an indictment, before conviction.

IV. Bail, upon an appeal.

V. Deposit, instead of bail.

VI. Surrender of the defendant.

VII. Forfeiture of the undertaking of bail, or of the deposit of money.

VIII. Re-commitment of the defendant, after having given bail, or deposited money instead of bail.

ARTICLE I.

IN WHAT CASES THE DEFENDANT MAY BE ADMITTED TO BAIL,

SEC. 550. Admission to bail, defined.

551. Taking bail, defined.

552. Offenses not bailable.

553. In what cases defendant may be admitted to bail, before conviction.

554. In what cases he may be admitted to bail, after conviction and upon appeal.

555. Nature of bail before conviction.

556. Nature of bail after conviction and upon appeal.

§ 550. Admission to bail defined.- When the defendant is held to appear for examination, bail for such appearance may be taken either,

1. By the magistrate who issued the warrant or before whom the same is returnable; or,

2. By any judge of the supreme court. § 551. Taking bail defined. The taking of bail consists in the acceptance, by a competent court or magistrate, of the undertaking of sufficient bail for the appearance of the defendant according to the terms of the undertaking, or that the bail will pay to the people of this state a specified sum.

Eighth Amendt. Cons. U. S. Art. 1, §5, N. Y. Const. The power to admit to bail is incident to power to hear and determine. Peo. v. Van Horne, 8 Barb., 158; Peo. v. Shattuck, 6 Abb. N. C., 33.

§ 552. Offenses not bailable.-The defendant cannot be admitted to bail except by a judge of the supreme court or by a court of oyer and terminer where he is charged,

1. With a crime punishable with death, or

2. With the infliction of a probably fatal injury upon another, and under such circumstances, as that, if death ensue, the crime would be murder.

If facts do not sustain charge of murder contained in warrant, bail may be allowed. Peo. v. Sheriff of Westchester, 1 Park, 659; Peo. v. Porter, 8 Barb., 168; Peo. v Beigler, 3 Park, 316; Peo. v. Baker, 10 How. Pr., 567; see also, Peo. v. Collins, 20 How. Pr., 111.

§ 553. When defendant may be admitted to bail, before conviction.-If the charge be for any other crime, he may be admitted to bail, before conviction, as follows:

1. As a matter of right, in cases of misdemeanor; 2. As a matter of discretion, in all other cases.

§ 554. When he may be admitted to bail, before conviction, generally.-Before conviction, a defendant may be admitted to bail,

1. For his appearance before the magistrate, on the examination of the charge, before being held to answer.

2. To appear at the court to which the magistrate is required, by section 221, to return the depositions and statements, upon the defendant being held to answer, after examination.

3. After indictment, either upon the bench warrant issued for his arrest, or upon an order of the court committing him, or enlarging the amount of bail, or upon his being surrendered by his bail, to answer the indictment in the court in which it is found, or to which it may be sent or removed for trial.

And any captain or sergeant of police in any city or village of this state may take bail for appearance before a competent and accessible magistrate the next morning from any person arrested for a misdemeanor between two o'clock in the afternoon and eight o'clock the next morning, if a magistrate competent to take the bail be not found within an hour after the arrest. When such captain or sergeant of police takes bail he must take it by an undertaking in the form in this section mentioned, executed in his presence by the defendant and at least one surety who must justify under oath and for that purpose the officer may administer the oath. The amount of bail taken by a captain or sergeant of police under this section must be as follows: If the offense be the violation of a corporation ordinance the amount of the bail must be one hundred dollars, except that if a conviction

upon the charge would render the defendant liable only for a fine, the amount of the bail must be double the largest fine that could be imposed; if the conviction would render him liable to imprisonment for thirty days or less, the amount of bail must be two hundred dollars. In all other cases the amount of bail must be five hundred dollars. The form of the undertaking must be as follows:

We A. B., defendant and

residing at number

in and C. D., defendent,* residing at, hereby jointly and severally undertake that the above A. B., defendant, shall appear and answer the complaint (describing it briefly) before the magistrate before whom he would be arraigned if not bailed on the day of eighteen hundred and at o'clock, to answer to the complaint, and there remain to answer, subject to any order of the magistrate, and render himself in execution thereof, or if he fail to perform either of these conditions, then he will pay to the people of the state of New York the sum of

§ 555. Nature of bail before conviction.-After the conviction of a crime not punishable with death, a defendant who has appealed, and when there is a stay of proceedings, but not otherwise, may be admitted to bail:

1. As a matter of right, when the appeal is from a judgment imposing a fine only;

2. As a matter of discretion, in all other cases.

§ 556. Nature of bail after conviction and upon appeal.-After conviction and upon an appeal, the defendant may be admitted to bail, as follows:

1. If the appeal be from a judgment imposing a fine only, on the undertaking of bail, that he will pay the same, or such part of it as the appellate court may direct, if the judgment be affirmed or modified or the appeal be dismissed;

2. If judgment of imprisonment have been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed.

ARTICLE II.

BAIL, UPON BEING HELD TO ANSWER, BEFORE INDICTMENT. SEC. 557, 558. By what courts or magistrates defendant may be admitted to bail

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