stays the execution of course until the determination of the appeal. When the judgment is of death, the court of appeals may order a new trial, if it be satisfied that the verdict 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. New. (a) As to what constitutes reasonable doubt.-People v. Wentworth, 3 N. Y. Cr. R. 116. (b) Doubt as to the construction of a statute.-When there is doubt as to the construction of a statute not yet passed upon by the court of last resort, a stay should be granted. People v. Hendrickson, 3 Park., 396. § 529. Certificate of stay not to be granted, but on notice to district attorney. 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 five hundred and twenty-seven and five hundred and twenty-eight, 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. Effect of the stay.-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 the papers to the 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 the court where judgment was rendered. (Reid v. Barker, 2 Cow., 408; Rule 3, Ct. App.) CHAPTER II. DISMISSING AN APPEAL FOR IRREGULARITY. SECTION 533. For what irregularity, and how dismissed. § 533. For what irregularity, and how dismissed,—If the 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 five hundred and thirty-two, unless for good cause they enlarge the time for that purpose. 3 R. S. 6th. Ed. 654, § 9. CHAPTER III. ARGUMENT OF THE APPEAL. SECTION 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 argument, 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. (Amended 1884.) 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. (a) Preference given to criminal cases.—Appeals and other proceedings in criminal cases are entitled to preference. (Code of Civil Pro., § 790.) They may be heard on any day in term. (Sup. Ct., 43.) (b) Must be noticed.--A criminal case cannot be moved out on the calendar without notice of intention so to do. (Barron v. People, 1 Barb., 136.) § 536. Appeal to court of appeals, how brought to argument.-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. Notes of argument to counsel for defendant.—If a counsel, within five days after the appeal, have given notice to the dis trict 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. (Amended 1887.) Papers, by whom furnished, and effect of omission. When the appeal is called for augument, the appellant must furnish the court with copies of the notice of appeal and judgment roll except where the judgment is of death. If he fail so to do, the appeal must be dismissed, unless the court otherwise direct. This applies also to § 485, 503, 517, 527 and 528 ante. § 539. Judgment of affirmance may be without argument, if appellant fail to appear; reversal, only upon argument, though respondent fail to appear.-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. $540. Number of counsel to be heard; defendant's counsel to close the argument. 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. The personal presence of the defendant is not necessary on the argument or at the decision in an appellate court. (People v. Clark, 1 Park., 360.) (a) Nor on motion to quash.-On a motion to quash it is not necessary that the defendant should be present in court during the argument. (People v. Vail, 57 How., 81.) CHAPTER IV. JUDGMENT, UPON APPEAL. SECTION 542. Court to give judgment, without regard to technical errors, defects or exceptions, not affecting substantial 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. 549. Jurisdiction of appellate court cease, after judgment remitted. $542. Court to give judgment without regard to technical errors, defects or exceptions not affecting substantial rights.-After hearing the appeal, the court must give judgment without re gard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties. (a) Formal defects unimportant.-A conviction will not be reversed for an error which it is clear could not have prejudiced the rights of the parties against whom the ruling was made. (People v. Buddensieck, 4 N. Y. Cr. Rep. 261. 3 N. Y. State Rep., 664.) (b) Illegal evidence when not ground for a new trial.-The admission of hearsay evidence is not a ground for a reversal if there is an abundance of other evidence sufficient to convict. (People v. Haven, 4 N. Y. Cr. R., 171) (c) Overruling challenges when ground-Error in overruling challenges for cause, is sufficient to secure a reversal, when defendant's challenges were exhausted. (People v. Casey, 96 N. Y., 115.) But is not a ground when defendant's challenges were not exhausted. (People v. Carpenter, 102 N. Y., 238. 1 N. Y. State Rep., 468.) (d) Verdict not vitiated.—A verdict of guilty is not vitiated by the fact that a juror asked a question of the sheriff which was answered by him, the defendant being in no way prejudiced thereby. (People v. Riley, 3 N. Y. Cr. R., 374. The verdict is not vitiated by misconduct of a juror, not shown to have affected the substantial rights of defendant. (People v. Menken, 3 N. Y. Crim. R., 233.) (e) Want of formal arraignment.--Judgment will not be arrested nor the conviction reversed for the want of a formal arraignment of, and plea on the part of defendant, where he did not ask to plead, was present with his counsel throughout the whole trial, and did not, until after the rendering of the verdict and discharge of the jury, object that he had not been arraigned. The defect is merely a technical one affecting no rights whatever, and will not be considered by the appellate court. (People v. Osterhout, 3 N. Y. Crim. R., 443.) (f) Must be actually prejudicial.-The error complained of must have been actually prejudicial to the prisoner. (Eggler v. People, 56 N. Y., 642. People v. Osterhout, 3 N. Y. Cr. R., 443; 34 Hun., 260; People v. Irving, 2 N. Y. Cr. Rep., 47; 31 Hun, 614; People v. Bork, id., 360.) (9) This section does not apply to the court of appeals.-Exceptions must have been taken to make error available in the court of appeals. That court has no authority to review a judgment in criminal actions unless exeptions were taken. (People v. Hovey, 92 N. Y., 554; People v. Giudici, 100 id., 503; People v. Donovan, 101 id., 632.) § 543. May reverse, affirm or modify the judgment, and order a new trial.-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. (a) May remit the record to the court below.-The appellate court may remit the record to the court below, to pass such sentence as the appellate court may direct. (People ex rel. Devoe v. Kelley, 2 N. Y. Cr. R., 430. See also People v. cMQuade, 15 N. Y. State Rep., 916.) (b) To correct the judgment.-It is the duty of the appellate court, under this section, to correct a judgment so that it will conform to the verdict where an erroneous judgment has been entered upon a lawful verdict. (People v. Griffin, 27 Hun, 595.) A judgment may be reversed in part and affirmed in part. (Bradshaw v. Callaghan, 8 Johns., 558.) The statute does not include courts of special sessions. (People v. Carter, 15 N. Y. State Rep., 640.) $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 of judgment against him, where 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. (Amended 1882.) 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. As to a re-sentence in capital cases, see, Moett v. People, 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 filled, 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. $548. (Amended 1884.) 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. $549. Jurisdiction of appellant court cases, after judgment remitted. After the certificate of the judgment has been remitted, as provided in section five hundred and forty-seven, 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. CHAPTER. I. Bail. TITLE XII. OF MISCELLANEOUS PROCEEDINGS. 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 indictment for want of prosecution or otherwise. |