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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 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.
DISMISSING AN APPEAL, FOR IRREGULARITY. SEC. 533. For what irregularity, and how, dismissed.
534. Dismissal for want of return. pun time 33. For what irregularity, and how, dismissed.
a 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.
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 en. titled to preference. Cole of Civil Proc , $ 790. May be heard on any day in term. Sup. Ct., Rule 13. See Barron v. Peo., 1 Barb., 136.
8 536. 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. T 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.
JUDGMENT, UPON APPEAL.
SEC. 542. Court to give judgment, without regard to technical
errors, defects or exceptions, not affecting substan$ 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.
tial rights. 543. May reverse, afirm 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 afirmance 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
Illegal eviilence which may have prejudicel the pri-oner is ground for new trial. Lambert v. Peo., 6 Aub. N. C., 181. See Cox v. Peo., 80 N. Y., 500. Must be exception to bring up ques. tions 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. Ætna 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 shall 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 reinitted 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
- 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.
Of Miscellaneous Proceedings.
II. Compelling the attendance of witnesses.
or during the trial, or after conviction.
ment for want of prosecution, or otherwise.
X. Entitling affidavits.
ceedings. XII. Disposal of property, stolen or embezzled. XIII. Reprieves, commutations and pardons.