Oct. 13, 1864, 2.4. taken by either § 1427. [224.] The party aggrieved, whether the Appeal may be state or the defendant, may appeal from a judgment in a criminal action in the cases prescribed in this chapter and not otherwise. party as pro vided in this chapier. Oct. 19, 1864, $ 225. Parties, how designated on appeal. Feb. 25, 1889, §1. Defendant, in what case he may a peal. State v. Brown, 5 Or. 119. St. 19, p. 138. 7 Or. 387. Oct. 19, 1864, §227. State, in what case it may appeal. 5 Or. 120. Id., 228. § 1428. [225.] 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. § 1429. [226.] An appeal to the supreme court may be taken by the defendant from a judgment on a conviction in a circuit court; or from an order refusing to dismiss the indictment as provided for in section 1524; and upon the appeal, any actual decision of the court, in an intermediate order or proceeding forming a part of the judgment roll, as prescribed by section 1413 [212], may be reviewed. § 1430. [227.] An appeal to the supreme court may be taken by the state, from the judgment or order of the circuit court, in the following cases: 1. Upon a judgment for the defendant on a demurrer to the indictment; 2. Upon an order of the court arresting the judgment. § 1431. [228.] An appeal may be taken as provided may be taken in the last two sections as a matter of right. Appeal, when as a matter of right. Id., § 223. Appeal, within what time must be taken. Id., § 230. Appeal, how taken. Id., § 231. § 1432. [229.] An appeal must be taken within one year after the judgment or order appealed from was given or made. § 1433. [230.] An appeal must be taken by the service of a notice in writing, on the clerk of the court where the judgment roll is filed, stating substantially that the appellant appeals from the judgment. § 1434. [231.] If the appeal be taken by the defendant, Appeal, notice a similar notice must be served on the district. attorney for the county in which the judgment roll is filed. of, to district attorney. Id., § 232. Failure to file notice after service will prevent the attaching of the jurisdiction of the circuit court: State v. Zingsem, 7 Or. 137. § 1435. [232.] If the appeal be taken by the state, a similar notice must be served on the defendant, if he be $232. Appeal, notice a resident of or imprisoned in the county; or if not, on Oct. 19, 1864, the counsel, if any, who appeared for him on the trial, if he reside or have an office for the transaction of of, to the defendant. business in the county. If, after due diligence, the service cannot be made as herein directed, the court or judge thereof from which the appeal is sought to be taken, upon proof thereof, may make an order for the Publication publication in such newspaper and for such time as it appeal. deems proper. Section followed in State v. Brown, 5 Or. 119. of notice of § 1436. [233.] At the expiration of the time appointed 1a., § 233. for the publication, on filing an affidavit thereof with When appeal the clerk, the appeal becomes perfected. perfected in case of publication. 1a., § 234. appeal, by § 1437. [234.] The notice of appeal, when the same is taken by the state, must be signed by the district Notice of attorney for the county, and when taken by the defend- whom signed. ant must be signed by him or an attorney of the court for him. appeal by § 1438. [235.] An appeal taken by the state, if taken Id., § 235. within the term at which the judgment or order appealed Effect of from is given or made, stays the effect of such judgment the state. or order in favor of the defendant, so that his bail or money deposited in lieu thereof is holden for the appearance and surrender of the defendant, until the final determination of the appeal and the proceedings consequent thereon, if any; but if the defendant be in custody, he may, in the discretion of the court, be admitted to bail, pending the appeal, on his own undertaking. § 1439. [236.] An appeal taken by the state does Id., $236. not stay or affect the operation of the judgment or order same subject. in favor of the defendant until the judgment is reversed, except as provided in the last section. judgment of stay of § 1440. [237.] An appeal from a judgment on a con- Id., § 237. viction stays the execution of the judgment, upon filing Appeal from with the notice of appeal a certificate of the judge of the conviction; court in which the conviction was had, or of a judge of proceedings. the supreme court, that in his opinion there is probable cause for the appeal, but not otherwise. Appeal does not vacate judgment below: Whitley v. Murphy, 5 Or. 328. Oct. 19, 1864, 238. Certificate for ings, when notice of application for to district attorney. § 1441. [238.] The certificate mentioned in the last section cannot be granted upon an appeal from a judg stay of proceed- ment on a conviction of a felony, except by the judge of the court in which the conviction was had, until such must be given notice as the judge may prescribe has been given to the district attorney for 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 mean time. Oct, 19, 1864, $239. If certificate for stay be given, sheriff not to execute judgment. Oct. 19, 1864, $240. Same subject. Oct. 19, 1864, 241. Transmitting record to supreme court, 11 Or. 171. Oct. 19, 1864, $242. When appeal may be dismissed. Oct. 19, 1864, § 243. Same subject. § 1442. [239.] If the certificate provided in section 1440 [237] be given, the sheriff must, if the defendant be in his custody, upon being served with a certified copy thereof, keep the defendant in his custody, without executing the judgment, and detain him to abide the judgment upon the appeal. § 1443. [240.] 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. § 1444. [241.] Upon the appeal being taken, the clerk of the court where the notice of appeal is filed must, within five days thereafter, or such further time as such court or the judge thereof may allow, transmit a certified copy of the notice of appeal, certificate of cause, if any, and judgment roll, to the clerk of the supreme court. § 1445. [242.] If the appeal be irregular in a substantial particular, but not otherwise, the appellate court may, on motion of the respondent and notice to the defendant, order it to be dismissed. § 1446. [243.] The appellate court may also, upon like motion and notice, order the appeal to be dismissed if the return be not made as provided in section 1444 [241], unless for good cause it retain the appeal, and require the clerk of the court below to make a further return as to any matter affecting the merits, which appears or is alleged to be omitted from the transcript. 244. § 1447. [244.] If the appellant fail to appear in the Oct. 13, 1864, appellate court, judgment of affirmance must be given as a matter of course; but the defendant need not person- do not appear, ally appear in the appellate court. If appellant judgment of affirmance. § 1448. [245.] Upon an appeal the judgment or order Id., § 245. appealed from can only be reviewed as to questions of Judgment only law appearing upon the transcript. to be reviewed court, judg ment of. § 1449. [246.] After hearing the appeal the court 1a., $246. must give judgment, without regard to the decision of Appellate questions which were in the discretion of the court below, or to technical errors, defects, or exceptions which do not affect the substantial rights of the parties. Judgment on appeal. On hearing on appeal the supreme court will give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the defendant: People v. Sprague, 53 Cal. 491; People v. Turley, 50 Id. 469; People v. Nelson, 56 Id. 77; People v. St. Clair, 56 Id. 406; S. C., 55 Id. 524; People v. Cronin, 34 Id. 191; People v. Dick, 32 Id. 213. Errors which do not prejudice will not warrant a reversal: People v. Rolfe, 61 Id. 540, 544; People v. Morine, 61 Id. 367, 373; People v. Smith, 59 Id. 601; People v. Williams, 59 Id. 674, 677, where the court went outside the evidence in charging the jury, but simply by way of illustration. A technical error is not sufficient of itself to reverse a judgment, but it must appear that by such error a substantial right of the defendant has been thereby affected, and the defendant must affirmatively prove that fact: People v. Brotherton, 47 Id. 404. The defendant cannot complain because an order denying his motion for a change of venue was entered in vacation instead of term time: People v. Congleton, 44 Id. 93. A judgment will not be reversed by the appellate court by reason of alleged error in a proceeding had in the course of the trial by express agreement of the defendant and his counsel, unless bound to do so by some controlling rule of law: People v. Henderson, 28 Id. 466. So a party cannot complain of an instruction given at his own request: People v. Lopez, 59 Id. 362. The appellant must affirmatively show error; the appellate court will not presume it: People v. Ferris, 56 Id. 442; People v. Gilbert, 60 Id. 108, 112; but where error has been committed in a criminal trial, it will be presumed to have injured the defendant unless the contrary clearly appears: People v. Murphy, 47 Id. 103; People v. Furtado, 57 Id. 345, 347; but see People v. Gray, 61 Id. 182, and the cases there cited. If there is a substantial conflict in the evidence the verdict will not be disturbed on appeal on the ground that it was not justified by the evidence: People v. Montgomery, 53 Id. 576; People v. Smallman, 55 Id. 185. Although some of the instructions given may not state the law applicable to the case with precise accuracy, yet if taken as a whole they are substantially correct, and could not have misled the jury, the judgment will not be disturbed: People v. Cleveland, 49 Id. 577; People v. Clementshaw, 49 Id. 385; People v. Salorse, 62 Id. 139, 144; People v. Ye Park, 62 Id. 204; People v. Tamkin, 62 Id. 468; People v. Gray, 61 Id. 164, 182. 6 or. 429. 13 Or. 195. 16 Or. 106. § 1450. [247.] The appellate court may reverse, affirm, 1a., § 247. or modify the judgment or order appealed from, and same subject. must, if necessary or proper, order a new trial. § 1451. [248.] When a new trial is ordered, it must 1a., § 248. be directed to be had in the court below; and if a judg- New trial. Oct. 19, 1864, $248. New trial, when to be had, and when defendant discharged. Oct. 19, 1864, Judgment to be entered and remitted to court below. Oct. 19, 1864, $250. Judgment of appellate court to be enforced in court below. Oct. 19, 1864, § 251. Proceeding in court below, ment against a 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. § 1452. [249.] When the judgment of the appellate court is given, it must be entered in its journal, and a certified copy of the entry forthwith remitted to the clerk of the court below. § 1453. [250.] Upon the receipt of such certified copy, the clerk must enter the same in the journal of the court below, and thereafter such judgment must be enforced, without any further proceedings, unless the appellate court so direct, as a judgment of the court below. § 1454. [251.] If, by the judgment of the appellate court, a new trial is ordered from the entry of the judg ment in the court below, the action is to be deemed pendtrial ordered. ing and for trial in such court, according to the directions of the appellate court. when new Id., § 252. Transcript to remain in ap § 1455. [252.] The transcript returned to the appellate court must there remain of record, and is not to be pellate court. remitted to the court below. After entry thereof, the copy of the judgment of the appellate court must be annexed to the original judgment roll. Copy of judgment of appellate court to be annexed to judgment roll. Id., § 253. When jurisdiction of appellate court ceases. certified § 1456. [253.] After the certified copy of the judgment has been remitted, as provided in section 1452, 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 certified copy is remitted. § 1459. § 1460. Defendant, when cannot be admitted to bail. Defendant, when admitted to bail before conviction, as a matter of right. |