§ 1226. IF FEMALE IS NOT PREGNANT, DUTY OF WARDEN. If it is found that the female is not pregnant, the warden must execute the judgment; if it 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.

Enacted February 14, 1872, founded upon §§ 476, 477 Criminal Practice Act 1851, Stats. 1851, pp. 264, 265; amendment approved March 31, 1891, Stats. and Amdts. 1891, p. 274; by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 493, act held unconstitutional, see history, § 5 ante; amendment re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 699.

§ 1227. JUDGMENT OF DEATH REMAINING IN FORCE, NOT EXECUTED. NO APPEAL FROM ORDER OF COURT. 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.

[No appeal from order of court.] From an order fixing the time for and directing the execution of such judgment, as herein provided, there shall be no appeal.

Enacted February 14, 1872, founded upon $$ 478, 479 Criminal Practice Act 1851, Stats. 1851, p. 265; amendment approved March 31, 1891, Stats. and Amdts. 1891, p. 274; by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 493, act held unconstitutional, see history, § 5 ante; amendment re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 700; amendment approved June 2, 1923, Stats. and Amdts. 1923, p. 627. In effect August 16, 1923.

§ 1228. PUNISHMENT OF DEATH, HOW INFLICTED. The punishment of death must be inflicted by hanging the defendant by the neck until he is dead.

Enacted February 14, 1872, re-enactment of § 480 Criminal Practice Act 1851, Stats. 1851, p. 265. As to execution of judgment of death, see ante, § 1217; post, § 1229.

As to warrant for execution of death penalty, see ante, § 1217.

§ 1229. WHERE JUDGMENT MUST BE EXECUTED. WHO MAY BE PRESENT. 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 same.

Enacted February 14, 1872; amendment approved March 31, 1891, Stats. and Amdts. 1891, p. 274; by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 493, act held unconstitutional, see history, § 5 ante.

As to execution of sentence of death, see ante, §§ 1217, 1228.

§ 1230. RETURN OF WARDEN. 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.

Enacted February 14, 1872; amended March 31, 1891, Stats. and Amdts. 1891, p. 274.

TITLE IX.

OF APPEALS TO THE SUPREME COURT.

Chapter I. Appeals, When Allowed and How Taken, and the Effect Thereof, §§ 12351247e.

II. Dismissing an Appeal for Irregularity, §§ 1248, 1249.

III. Argument of the Appeal, §§ 1252-1255.

IV. Judgment Upon Appeal, §§ 1258-1265.

CHAPTER I.

APPEALS, WHEN ALLOWED AND HOW TAKEN, AND THE EFFECT

§ 1235. BY WHOM TAKEN ON QUESTIONS OF LAW. 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.

Enacted February 14, 1872, founded upon §§ 481, 482 Criminal Practice Act 1851, Stats. 1851, p. 265; amendment by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 494, act held unconstitutional, see history, § 5 ante; amendment re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 700.

As to appellate jurisdiction of Supreme Court on questions of law where sentence of death has been given, see Const. 1879, Art. VI, § 4.

§ 1236. PARTIES, HOW DESIGNATED ON APPEAL. 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.

Enacted February 14, 1872, re-enactment of § 483 Criminal Practice Act 1851, Stats. 1851, p. 265.

§ 1237. IN WHAT CASES AN APPEAL MAY BE TAKEN BY THE DEFENDANT. 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.

p. 265.

Enacted February 14, 1872, founded on § 481 Criminal Practice Act 1851, Stats. 1851, As to inability of defendant to appeal from order carrying into execution sentence of death, see ante, § 1227.

§ 1238. IN WHAT CASES BY THE PEOPLE. 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.

Enacted February 14, 1872, founded upon § 481 Criminal Practice Act 1851, Stats. 1851, p. 265; amendment approved April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 26; March 27, 1897, Stats. and Amdts. 1897, p. 195; by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 494, act held unconstitutional, see history, § 5 ante; amendment re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 700.

§ 1239. APPEALS, WITHIN WHAT TIME TO BE TAKEN. 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 the 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.

Enacted February 14, 1872; founded upon § 485 Criminal Practice Act 1851, Stats. 1851, p. 266; amendment by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 494, act held unconstitutional, see history, § 5, ante; amendment approved March 18, 1907, Stats. and Amdts. 1907, p. 559, Kerr's Stats. and Amdts. 1906-7, p. 540; April 22, 1909, Stats. and Amdts. 1909, p. 1086; April 5, 1917, Stats. and Amdts. 1917, p. 37. As to appeal from decree removing from office and how taken, see ante, § 770.

§ 1240. HOW TAKEN. 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.

Enacted February 14, 1872, founded upon $$ 486, 487, 488 Criminal Practice Act 1851, Stats. 1851, p. 266; amendment by Code Commission, Act March 16, 1901, Stats. and Amdts, 1900-1, p. 494, act held unconstitutional, see history, $5, ante; amendment reenacted March 21, 1905, Stats. and Amdts. 1905, p. 701; amendment approved April 22, 1909, Stats. and Amdts. 1909, p. 1086.

§ 1241. NOTICE SERVED BY PUBLICATION, WHEN. 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 so enter the same in the minutes shall in no way affect or invalidate the appeal.

Enacted February 14, 1872, founded upon §§ 488, 489 Criminal Practice Act 1851, Stats. 1851, p. 266; amendment by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 494, act held unconstitutional, see history, § 5, ante; amendment re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 701; amendment approved April 22, 1909, Stats. and Amdts. 1909, p. 1086.

As to service of notice generally, see Kerr's Small C. C. P., §§ 101, 1013.

§ 1242. EFFECT OF AN APPEAL BY THE PEOPLE. 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.

Enacted February 14, 1872, re-enactment of § 490 Criminal Practice Act 1851, p. 266.

§ 1243. EFFECT OF APPEAL. 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, there is probable cause for the appeal, but not otherwise.

p. 450.

Enacted February 14, 1872; amendment approved March 30, 1874, Code Amdts. 1873-4,
As to certificate of probable cause, see post, § 1245.

§ 1244. SAME. 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.

Enacted February 14, 1872.

§ 1245. EFFECT OF AN APPEAL BY DEFENDANT. 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.

Enacted February 14, 1872; amendment by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 494, act held unconstitutional, see history, § 5, ante; amendment re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 701.

§ 1246. DUTY OF CLERK UPON APPEAL. 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;

A copy of the minutes of the plea;

2.

6.

A copy of other 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.

Enacted February 14, 1872, founded upon § 492 Criminal Practice Act 1851, Stats. 1851, p. 266; amendment approved April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 9; March 19, 1889, Stats. and Amdts. 1889, p. 325; by Code Commission, Act March 16, 1901, Stats. and Amats. 1900-1, p. 494, act held unconstitutional, see history § 5, ante; amendment approved April 22, 1909, Stats. and Amdts. 1909, p. 1087.

As to record and proceedings in record, see ante, § 1235.

§ 1247. STAtement of grounds OF APPEAL. DESIGNATING PORTION OF REPORTER'S NOTES TO BE COPIED. 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 the 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 opinion of the court may be necessary to fairly and fully present