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1247b. If a transcription of the phonographic reporter's notes cannot be obtained, by reason of his illness or death, the appellant shall cause to be prepared and filed, in the place thereof, a transcription of such of the proceedings as was by the court ordered to be transcribed by the phonographic reporter. Such transcription must be filed within the time and in the manner provided for the filing of the phonographic reporter's transcribed notes. Upon such filing by the appellant, the same proceedings shall be had and taken as is provided in section 1247a of this code, upon the filing the phonographic reporter's transcribed notes.

1905–1085. 1247c. Upon suggestion to the appellate court wherein an appeal in a criminal case is pending, that a further transcription of the proceedings is necessary, if in the opinion of the court it is necessary to have a further transcription of the proceedings in the trial court, it may order the same to be transcribed by the phonographic reporter within a time fixed in the order; provided that no further transcription shall be ordered upon the suggestion of the appellant unless the application therefor was included in the original application made to the trial court. There shall thereupon be transcribed the portion so ordered, and copies filed with the clerk of the superior court in the same manner and with like force and effect as though included in the original order of the court; and like proceedings shall be had and taken as provided by law, as in case of the original. 1905–1085.

1247d. The time within which the phonographic reporter shall transcribe and file his notes or the appellant shall file a transcription of the proceedings as provided in section 1247b of this code cannot be extended by the judge of the court or by the court in which the case was tried. Upon affidavit showing good cause therefor, the court in which the appeal is pending may extend the time not exceeding sixty days. 1909–1086.

1247e. No printing of any record on appeal or briefs in a criminal case shall be required or ordered. 1909/1086.

CHAPTER II.

Dismissing an Appeal for Irregularity. 1248. For irregularity, how 1249. Dismissal for want of a dismissed.

return. 1248. If the appeal is irregular in any substantial particular, but not otherwise, the appellate court may, on any day, on motion of the respondent, upon five days' notice, accompanied with copies of the papers upon which the motion is founded, order it to be dismissed. 1880-10.

1249. The court may also, upon like motion, dismiss the appeal, if the return is not made as provided in section 1246, unless for good cause they enlarge the time for that purpose.

CHAPTER III.

Argument of the Appeal. 1252. Appeals, when heard and 1254. Number of attorneys. determined.

1255. Defendant need not be 1253. Judgment may be af

present. firmed but not reversed

without argument. 1252. All appeals in criminal cases must be heard and determined by the appellate court within sixty days after the record is filed in said appellate court, unless continued on motion or with the consent of the defendant.

1253. The judgment may be affirmed if the appellant fail to appear, but can be reversed only after argument, though the respondent fail to appear.

1254. Upon the argument of the appeal, if the offense is punishable with death, two counsel must be heard on each side, if they require it. In any other case the court may, in its discretion restrict the argument to one counsel on each side.

1255. The defendant need not personally appear in the appellate court.

CHAPTER IV.

exe

Judgment Upon Appeal. 1258. Technical errors not im- 1262. Defendant, when disportant.

charged on reversal. 1259. What may be reviewed. 1263. Judgment to be 1260. May reverse, affirm,

cuted on affirmance. modify or order

new 1264. On appeal, how entered trial.

and remitted. 1261. New trial, where had. 1265. Jurisdiction ceases after

judgment. 1258. 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.

1259. Upon an appeal taken by the defendant in open court, the appellate court may, without exception having been taken in the trial court, review any question of law involved in any ruling, or

der, instruction, or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant. The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby. 1909-1088.

1260. The court may reverse, affirm, or modify the judgment or order appeal from, and may set aside, affirm or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial.

1261. When a new trial is ordered it must be directed to be had in the court of the county from which the appeal was taken.

1262. If a judgment against the defendant is reversed with- i out ordering a new trial, the appellate court must, if he is in custody, direct him to be discharged therefrom; or if on bail, that his bail be exonerated; or if money was deposited instead of bail, that it be refunded to the defendant.

1263. If a judgment against the defendant is affirmed, the original judgment must be enforced.

1264. When the judgment of the appellate court is given, it must be entered in the minutes, and a certified copy of the entry, with a copy of the opinion of the court attached thereto, forthwith remitted to the clerk of the court from which the appeal was taken. 1905—701.

1265. After the certificate of the judgment has been remitted to the court below, the appellate court has no further jurisdiction of the appeal or of the proceedings thereon, and all orders necessary to carry the judgment into effect must be made by the court to which the certificate is remitted.

TITLE X.

Miscellaneous Proceedings.
Chapter I. Bail.

II. Who may be witnesses in Criminal Actions.
III. Compelling the Attendance of Witnesses.
IV. Examination of Witnesses Conditionally.

V. Examination of Witnesses on Commission.
VI. Inquiry into the Insanity of the Defendant Before

Trial or After Conviction,
VII. Compromising Certain Public Offenses by Leave of

the Court.
VIII. Dismissal of the Action, Before or After Indictment,

for Want of Prosecution or Otherwise.
IX. Proceedings Against Corporations.

X. Entitling Affidavits.
XI. Errors and Mistakes in Pleadings and Other Proceed-

ings.
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 Appeal.
V. Deposit Instead of Bail.
VI. Surrender of the Defendant.
VII. Forfeiture of the Undertaking of Bail or of the De-

posit of Money.
VIII. Recommitment 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. 1268. Admission to bail de- 1272. Bail on appeal. fined.

1273. Nature of bail. 1269. Taking of bail defined. 1274. Bail when a matter of 1270. Offenses not bailable.

discretion. Proceedings. 1271. Bail before conviction.

1268. Admission to bail is the order of a competent court or magistrate that the defendant be discharged from actual custody

upon bail.

1269. 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.

1270. A defendant charged with an offense punishable with death cannot be admitted to bail, when proof of his guilt is evident or the presumption thereof great. The finding of an indictment does not add to the strength of the proof or the presumptions to be drawn therefrom.

1271. If the charge is for any other offense, he may be admitted to bail before conviction, as a matter of right.

1272. After conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail:

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

2. As a matter of right, when the appeal is from a judgment imposing imprisonment in cases of misdemeanor.

3. As a matter of discretion in all other cases. 1909–591. 1273. If the offense is bailable, the defendant may be admitted to bail before conviction:

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

Second. To appear at the court to which the magistrate is required to return the depositions and statement, upon the defendant being held to answer after examination.

Third. After indictment, either before the bench-warrant is issued for his arrest, or upon any 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 transferred for trial.

And after conviction, and upon an appeal:

First. If the appeal is 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 is affirmed or modified, or the appeal is dismissed.

Second. If judgment of imprisonment has been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed, or that in case the judgment be reversed, and that the cause be remanded for a new trial, that he will appear in the court to which said cause may be remanded, and submit himself to the orders and process thereof. 1876—116.

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