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and twenty-one, except that instead of a jury, as herein provided, the court may summon three disinterested physicians, of good standing in their profession, to inquire into the supposed pregnancy, who shall, in the presence of the court, but with closed doors, if requested by the defendant, examine the defendant and hear any evidence that may be produced, and make a written finding and certificate of their conclusions, to be approved by the court and spread upon the minutes. The provisions of section twelve hundred and twenty-two apply to the proceedings upon such inquiry. 1950—699.

1226. If it is found that the female is not pregnant, the warden must execute the judgment; if is is found that she is pregnant the warden must suspend the execution of the judgment, and transmit a certified copy of the finding and certificate to the governor. When the governor receives from the warden a certificate that the defendant is no longer pregnant, he must issue to the warden his warrant appointing a day for the execution of the judgment. 1905–699.

1227. If for any reason a judgment of death has not been executed, and it remains in force, the court in which the conviction was had shall, on application of the district attorney, or may upon its own motion, make and cause to be entered an order appointing a day upon which the judgment shall be executed, which must not be less than sixty days nor more than ninety days from the time of making such order; and within five days thereafter, a certified copy of such order, attested by the clerk, under the seal of the court, shall, for the purpose of execution, be transmitted by registered mail to the warden of the state prison having the custody of the defendant; provided, that if the defendant be at large, a warrant for his apprehension may be issued, and, upon being apprehended, he shall be brought before the court, whereupon the court shall make an order directing the warden of the state prison to whom the sheriff is instructed to deliver the defendant to execute the judgment at a specified time, which shall not be less than sixty days nor more than ninety days from the time of making such order. From an order fixing the time for and directing the execution of such judgment, as herein provided there shall be no appeal. 1923-627.

1228. The punishment of death must be inflicted by hanging the defendant by the neck until he is dead.

1229. A judgment of death must be executed within the walls of one of the state prisons designated by the court by which judgment is rendered. The warden of the state prison where the execution is to take place must be present at the execution and must invite the presence of a physician, the attorney general of the state, and at least twelve reputable citizens, to be selected by him; and he shall at the request of the defendant, permit such

ministers of the gospel, not exceeding two, as the defendant may name, and any persons, relatives or friends, not to exceed five, to be present at the execution, together with such peace-officers as he may think expedient, to witness the execution. But no other persons than those mentioned in this section can be present at the execution, nor can any person under age be allowed to witness the

1891–274. 1230. After the execution, the warden must make a return upon the death- warrant to the court by which the judgment was rendered, showing the time, mode, and manner in which it was executed. 1891–274.

same.

TITLE IX.

Appeals to the Supreme Court. Chapter I. Appeals When Allowed and How Taken, and the Ef

fect Thereof. .

II. Dismissing an Appeal for Irregularity.
III. Argument of the Appeal.
IV. Judgment upon Appeal.

CHAPTER I.

Appeals, when Allowed and how Taken, and the Effect Thereof.

1235. Who may appeal. Ques

1243. Effect by defendant.
1244. Same.
1245. Same.
1246. Papers transmitted,

tions of law. 1236. Parties, how desi g

nated. 1237. Defendant, in what

cases may appeal. 1238. What cases by the Peo

ple. 1239. Appeals by defendant,

generally. 1240. People, same. 1241. Notice of appeal, how

entered. 1242. Effect of appeal by

people.

what. 1247. Appeals, proceedings in

general. 1247a. Clerk, duty of. 1247b. Phonographic notes,

who shall transcribe. 1247c. Same. 1247d. Time limited. 1247e. Printing.

1235. Either party in a prosecution by indictment or information may appeal to the supreme court on questions of law alone, as prescribed in this chapter. 1905—700.

1236. 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. 1237. An appeal may be taken by the defendant:

1. From a final judgment of conviction;
2. From an order denying a motion for a new trial;

3. From any order made after judgment, affecting the substantial rights of the party. 1238. An appeal may be taken by the people:

1. From an order setting aside the indictment or information;

2. From a judgment for the defendant on a demurrer to the indictment, accusation or information;

3. From an order granting a new trial;
4. From an order arresting judgment;

5. From an order made after judgment, affecting the substantial rights of the people. 1905–700.

1239. An appeal from a judgment may be taken by the defendant by announcing personally or through his attorney in open court at the time the judgment is rendered that he appeals from same or by filing a written notice of appeal within two days after the rendition of judgment with the clerk of the court wherein judgment was rendered; and from any order made after judgment, by announcing in open court at the time the same is made that he appeals from the same. 1917—37.

1240. An appeal may be taken by the people by announcing in open court at the time the order is made that the people appeal from the same.

1909--1086. 1241. Any announcement of appeal made in open court by either the defendant or the people, must be by the clerk immediately entered in the minutes of the court. But the failure of the clerk to enter the same in the minutes shall in no way affect or invalidate the appeal. 1909-1086.

1242. An appeal taken by the people in no case stays or affects the operation of a judgment in favor of the defendant, until judgment is reversed.

1243. An appeal to the supreme court from a judgment of conviction stays the execution of the judgment in all capital cases, and in all other cases, upon filing with the clerk of the court in which the conviction was had, a certificate of the judge of such court, or of a justice of the supreme court, that, in his opinion,

1874

there is probable cause for the appeal, but not otherwise. 450.

1244. If the certificate provided for in the preceding section is filed, the sheriff must, if the defendant' be in his custody, upon being served with a copy thereof, keep the defendant in his custody without executing the judgment, and detain him to abide the judgment on appeal.

1245. If before the granting of the certificate, the execution of the judgment has commenced, the further execution thereof is suspended, and upon service of a copy of such certificate the defendant must be restored, by the officer in whose custody he is, to his original custody. 1905–701.

1246. Upon the appeal being taken, the clerk of the court from which the appeal is taken must, without charge, within twenty days thereafter transmit to the clerk of the appellate court a typewritten copy of the following papers:

1. The indictment, information or accusation;
2. A copy of the minutes of the plea;
3. A copy of the minutes of the demurrer;
4. A copy of the demurrer;
5. A copy of the minutes of the trial;

6. A copy of the minutes of the action, including the proceedings on motion for arrest of judgment or new trial;

7. A copy of the written charges given by the court to the jury, or refused, or modified and given; also a transcript of any oral charge;

8. A copy of the judgment;

9. Any written or printed exhibits offered in evidence at the trial of the cause.

The clerk of the court from which the appeal is taken must also, within the time above specified, deliver, without charge, to the defendant or his attorney, upon application therefor, a carbon copy of the original transmitted to the clerk of the appellate court; and must also deliver, without charge, a carbon copy to the district attorney upon his application therefor. 1909–1087.

1247. Upon an appeal being taken from any judgment or order of the superior court, to the supreme court or to a district court of appeal, in any criminal action or proceeding where such appeal is allowed by law, the defendant, or the district attorney when the people appeal, must, within five days, file with the clerk and present an application to the trial court, stating in general terms the grounds of the appeal and the points upon which the appellant relies, and designate what portions of the phonographic reporter's notes it will be necessary to have transcribed to fairly

present the points relied upon. If such application is not filed within said time, the appeal is wholly ineffectual and shall be deemed dismissed and the judgment or order may be enforced as if no appeal had been taken.

The court shall, within two days after filing of such application, make an order directing the phonographic reporter who reported the case to transcribe such portion of his notes as in the opinions of the court may be necessary to fairly and fully present the points relied upon by the appellant. If the court fails to make the order within two days after the application is filed, the notes requested in the application shall be transcribed without such order, The phonographic reporter shall, within twenty days after the filing of such application, file with the clerk of the court an original transcription and three carbon copies of the portion of the notes so required to be transcribed, excluding there from all argument of counsel not objected to at the time it was made. The same shall be typewritten as prescribed by the rules of the supreme court. He shall append to the original and to each copy his original affidavit that it is correct. 1911—692.

1247a. Upon the transcribed notes being filed by the reporter with the clerk, it shall be the duty of the clerk forthwith to immediately deliver upon demand one of the carbon copies to the defendant or his attorney, the other carbon copy upon demand to the district attorney, and deliver the original, with the date of the several deliveries of the original and the copies, if delivery has been made, indorsed upon the original, to the court for its approval. Unless objection is made thereto by either the defendant or his attorney or the district attorney, within ten days after the receipt thereof, the judge shall certify thereon that no objection has been made thereto within the time allowed by law; and after so certifying shall immediately redeliver the same to the clerk. The defendant or his attorney or the district attorney may file with the clerk a proposed correction of the transcribed proceedings within ten days after the filing of the transcribed proceedings. The court must immediately hear and determine the objection; if in the opinion of the court the transcription of the proceedings is not correct, the court must correct the same. When so corrected he must certify thereon that all objections made thereto have been heard and determined, and the same corrected in accordance with such determination; and thereupon immediately redeliver the same to the clerk. When the original transcription of the proceedings so certified by the judge has been received by the clerk from the judge, he must immediately transmit the same to the court to which the appeal was taken, and thereupon it shall become a part of the record upon appeal and he must immediately transmit to the attorney-general a carbon copy thereof with any and all corrections made to the original notes thereon. 1909-1085.

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