§ 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. En. February 14, 1872.

Crim. Prac. Act, sec. 490. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1243. Effect of an appeal by the defendant. 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. En. February 14, 1872. Am'd. 1873-4, 450.

Cal. Rep. Cit. 45, 305; 49, 682; 68, 180; 81, 164; 81, 166; 95, 596; 96, 596; 96, 597; 104, 401; 119, 129; 119, 209; 125, 252; 135, 60; 144, 657.

Crim. Prac. Act, sec. 491. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal. Rep. Cit. 32, 43.

§ 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. En. February 14, 1872.

§ 1245. Same. 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. En. February 14, 1872. Am'd. 1905, 701.

The change consists in the insertion of the words "the execution of the" before "judgment."-Code Commissioner's Note.

§ 1246. Duty of clerks upon appeal. Upon the appeal being taken, the clerk of the court with whom the notice of appeal is filed must, within twenty days thereafter, in case the bill of exceptions has been settled by the judge before the giving of said notice, but if not, then within

twenty days from the settlement of the bill of exceptions, without charge, transmit to the clerk of the appellate court, fifteen printed copies (one of which shall be certified to and be the original) of the notice of appeal, the record, and of all bills of exceptions; and upon the receipt thereof, the clerk of the appellate court must file the original, and dispose of the copies as he is required to do in the case of transcripts on appeal in civil cases, and all his services as provided herein must be without charge. The clerk of the lower court must also within the time above specified serve printed copies of the above named papers without charge upon the defendant's attorney and upon the attorney-general. The printing of the above named papers is a county charge. En. February 14, 1872. Am'd. 1880, 9; 1889, 325.

Cal. Rep. Cit. 49, 649; 84, 582; 115, 167; 120, 554. Crim. Prac. Act, sec. 492. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Am'd. 1862, 536.

1248.

CHAPTER II.

DISMISSING AN APPEAL FOR IRREGULARITY.

For what irregularity, and how dismissed. 1249. Dismissal for want of a return.

§ 1248. For what irregularity, and how dismissed. 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. En. February 14, 1872. Am'd. 1880, 10.

Cal. Rep. Cit. 69, 238; 95, 595; 132, 139.

Crim. Prac. Act, sec. 493. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1249. Dismissal for want of a return. The court may also, upon like motion, dismiss the appeal, if the return is not made as provided in section one thousand two hundred and forty-six, unless for good cause they enlarge the time for that purpose. En. February 14, 1872.

Crim. Prac. Act, sec. 494. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1252. Appeals, when to be heard and determined.

§ 1253.

Judgment cannot be reversed without argument.

1254. Number of counsel to be heard.

§ 1255. Defendant need not be present.

§ 1252. Appeals, when to be heard and determined. 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. En. February 14, 1872. Am'd. 1880, 10.

Cal. Rep. Cit. 91, 29; 97, 249.

Crim. Prac. Act, sec. 495. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1253. Judgment cannot be reversed without argument. The judgment may be affirmed if the appellant fail to appear, but can be reversed only after argument, though the respondent fail to appear. En. February 14, 1872.

Cal. Rep. Cit. 55, 298; 97, 248.

Crim. Prac. Act, sec. 496. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1254. Number of counsel to be heard. 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. En. February 14, 1872.

Cal. Rep. Cit. 55, 298.

Crim. Prac. Act, sec. 497. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Am'd. 1854, 81.

§ 1255. Defendant need not be present. The defendant need not personally appear in the appellate court. En. February 14, 1872.

Cal. Rep. Cit. 55, 298.

En. April 20, 1850. Rep. 1851,

Crim. Prac. Act, sec. 498. 290. En. 1851, 212. Am'd. 1863, 162.

CHAPTER IV.

JUDGMENT UPON APPEAL.

1258. Judgment without regard to technical errors.

1259. What may be reviewed on an appeal by defendant.

May reverse, affirm, or modify the judgment, and order new trial.

§ 1260.

§ 1261.

New trial, where to be had.

§ 1262.

§ 1263.

Defendant discharged on reversal of judgment.

Judgment to be executed on affirmance.

1264. Judgment upon appeal, how entered and remitted. § 1265. Jurisdiction ceases after judgment remitted.

§ 1258. Judgment without regard to technical errors. 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. En. February 14, 1872.

Cal. Rep. Cit. 47, 120; 50, 471; 53, 495; 55, 525; 56, 407; 57, 99; 57, 100; 58, 266; 59, 377; 59, 604; 62, 520; 63, 615; 65, 149; 65, 566; 71, 387; 73, 316; 88, 139; 88, 489; 90, 572; 94, 119; 94, 120; 102, 387; 104, 484; 105, 264; 106, 40; 109, 297; 115, 60; 117, 657; 120, 274; 133, 73; 133, 124; 137, 264; 137, 267; 138, 536; 139, 116; 139, 162; 141, 534; 144, 756; 145, 504; 147, 553. Crim. Prac. Act, sec. 499. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal. Rep. Cit. 44, 95.

§ 1259. What may be reviewed on an appeal by defendant. Upon an appeal taken by the defendant from a judgment the court may review any intermediate order or ruling involving the merits, or which may have affected the judgment. En. February 14, 1872.

Cal. Rep. Cit. 65, 100; 65, 101; 119, 2; 135, 372; 135, 374; 145, 738.

Crim. Prac. Act, sec. 484. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal. Rep. Cit. 42, 624; 44, 95.

§ 1260. May reverse, affirm, or modify the judgment, and order new trial. The court may reverse, affirm, or modify the judgment or order appealed from, and may set aside, affirm, or modify any or all of the proceedings sub

sequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial. En. February 14,

1872.

Cal. Rep. Cit. 94, 386.

Crim. Prac. Act, sec. 500. 290. En. 1851, 212.

En. April 20, 1850. Rep. 1851,

§ 1261. New trial, where to be had. 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. En. February 14, 1872.

Crim. Prac. Act, sec. 501. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Am'd. 1851, 407.

§ 1262. Defendant discharged on reversal of judgment. If a judgment against the defendant is reversed without 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. En. February 14, 1872.

Cal. Rep. Cit. 61, 380; 143, 220.

Crim. Prac. Act, sec. 502. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1263. Judgment to be executed on affirmance. If a judgment against the defendant is affirmed, the original judgment must be enforced. En. February 14, 1872.

Crim. Prac. Act, sec. 503. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1264. Judgment upon appeal, how entered and remitted. 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. En. February 14, 1872. Am'd. 1905, 701.

The design of the amendment is to require a copy of the opinion of the Supreme Court to be certified to and sent to the clerk of the court below with the remittitur. The change consists in the insertion of the words "with a copy of the opinion of the court attached thereto," after "entry."-Code Commissioner's Note.