CHAPTER III.

ARGUMENT OF THE APPEAL.

SECTION 535. Appeal to supreme court, how and where brought to argument. 536. Appeal to court of appeals, how brought to argument.

537. Notice of argument to counsel for defendant.

538. Papers, by whom furnished, and effect of omission.

539. Judgment of affirmance may be without argument, if appellant fail to appear; reversal, only upon argument, though respondent fail to appear.

540. Number of counsel to be heard; defendant's counsel to close

the argument.

541. Defendant need not be present.

§ 535. Appeal to supreme court, how and where brought to argument.— An appeal to the supreme court may be brought to argument by either party, on ten days' notice, on any day, at a general term held in the department in which the original judgment was given.

See Code Civ. Proc., § 790; Sup. Ct. Rule 43; Barron v. People, 1 Barb. 136.

536. Appeal to court of appeals, how brought to argument. An appeal to the court of appeals may, in the same manner, be brought to argument by either party, on any day in term.

§ 537. Notice of argument to counsel for defendant. — If a counsel, within five days after the appeal, have given notice to the district attorney, that he appears for the defendant, notice of argument must be served on him, instead of the defendant; otherwise, notice must be served as the court may direct.

§ 538. Papers, by whom furnished, and effect of omission. When the appeal is called for argument, the appellant must furnish the court with copies of the notice of appeal and judgment-roll, except where the judgment is of death. If he fail to do so, the appeal must be dismissed, unless the court otherwise direct.

§ 539. Judgment of affirmance may be without argument, if appellant fail to appear; reversal, only upon argument, though respondent fail to appear. - Judgment

of affirmance may be given, without argument, if the appellant fail to appear. But judgment of reversal can only be given upon argument, though the respondent fail to appear.

See People v. Bradner, 44 Hun, 235; 107 N. Y. 1; Barron v. People, 1 Barb. 136.

§ 540. Number of counsel to be heard; defendant's counsel to close the argument. Upon the argument of the appeal, if the crime be punishable with death, two counsel on each side must be heard if they require it. In any other case the court may, in its discretion, restrict the argument to one counsel on each side. The counsel for the defendant is entitled to the closing argument.

§ 541. Defendant need not be present. The defendant need not personally appear in the appellate court.

See People v. Clark, 1 Park. 360; reversed, 7 N. Y. 385, without noticing this point.

A prisoner in criminal proceedings can take no action before the court where he has escaped out of custody and still remains at large. People v. Genet, 59 N. Y. 80; 17 Am. Rep. 315; Matter of O'Byrne, 55 Hun, 438; Warwick v. State, 73 Ala. 486; 49 Am. Rep. 59; Sargent v. State, 96 Ind. 93; 5 Crim. Law Mag. 709; Smith v. United States, 94 U. S. 97; Wilson v. Com., 10 Bush, 526; 19 Am. Rep. 76; People v. Redinger, 55 Cal. 290; 36 Am. Rep. 32; M'Gowan v. People, 104 III. 100; 44 Am. Rep. 87. See, also, 41 Am. Dec. 272; 9 Crim. Law Mag. 439; 30 Eng. Rep. 513.

CHAPTER IV.

JUDGMENT, UPON APPEAL.

SECTION 542. Court to give judgment, without regard to technical errors, defects or exceptions, not affecting substantial rights.

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

trial.

544. New trial.

545. Defendant to be discharged on reversal of judgment against

him, where new trial is not ordered.

546. Judgment to be executed, on affirmance against the defendant.
547. Judgment of appellate court, how entered and remitted
548. Papers returned, not to be remitted.

549. Jurisdiction of appellate court ceases, after judgment remitted.

§ 542. Court to give judgment without regard to technical errors, defects or exceptions, not affecting substantial rights. 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.

See §§ 285, 684; People v. Hagan, 37 State Rep. 661.

The error complained of must have been actually prejudicial to the prisoner. People v. Ransom, 7 Wend. 417; Eastwood v. People, 3 Park. 25; People v. Montgomery, 13 Abb. Pr. 207; Beebe v. People, 5 Hill, 32; People v. Hartung, 4 Park. 256; 17 How. Pr. 85; Wilson v. People, 4 Park. 619; 8 Abb. Pr. 137; People v. Gaffney, 14 id. 36; People v. Gray, 5 Wend. 289; Eggler v People, 56 N. Y. 642; People v. Burns, 33 Hun, 300; 2 N. Y. Cr. Rep. 427; People v. Osterhout, 3 id. 445; 34 Hun, 260; People v. Irving, 2 N. Y. Cr. Rep. 47; 31 Hun, 614; 95 N. Y. 141; People v. Bork, 31 Hun, 360; People v. Buddensieck, 103 N. Y. 487, 500; People v. Myers, 5 N. Y. Cr. Rep. 125; People v. Sharp, 45 Hun, 499, 518; People v. Willett, 27 id. 471; People v. Wentworth, 4 N. Y. Cr. Rep. 214; People v. Druse, 5 id. 33; People v. Johnson, 104 N. Y. 213; 5 N. Y. Cr. Rep. 221; People v. Richards, 44 Hun, 278; 5 N. Y. Cr. Rep. 371; People v. Connor, 53 Hun, 356; People v. McQuade, 110 N. Y. 284; 21 Abb. N. C. 419, 433, 435, 436, 449; People v. Upton, 29 State Rep. 779; 4 N. Y. Cr. Rep. 149; People v. Menken, 36 Hun, 91; 3 N. Y. Cr. Rep. 233; People v. Chacon, 102 N. Y. 669; 4 N. Y. Cr. Rep. 173; People v. Riley, 3 id. 374; People v. Dimick, 107 N. Y. 13; People v. Urleman, 44 Hun, 187; Cox v. People, 80 N. Y. 500; Schrumf v. People, 14 Hun, 10.

§ 543. May reverse, affirm or modify the judgment, and order a new trial. - Upon hearing the appeal the appellate court may, in cases where an erroneous judgment has been entered upon a lawful verdict, correct the judgment to conform to the verdict; in all other cases they must either reverse or affirm the judgment appealed from, and in cases of reversal may, if necessary or proper, order a new trial.

See § 527,ante; People v. Bradner, 107 N. Y. 12; People v. Palmer, 109 id. 419; 5 N. Y. Cr. Rep. 108; 43 Hun, 408; People, ex rel., v. Risley, 47 N. Y. Cr. Rep. 111; 38 Hun, 282; People, ex rel, v. Kelly, 2 N. Y. Cr. Rep. 430; 32 Hun, 538; 97 N. Y. 212.

It is the duty of the appellate court, under this section, to correct a judg ment so that it will conform to the verdict where an erroneous judgment has been entered upon a lawful verdict. People v. Griffin, 27 Hun, 595.

Where the conviction is unassailed, and the judgment is reversed for error in the sentence, the appellate court should remit the record to the court in which the conviction was had, to pass such sentence as the appellate court directs. People v. Bauer, 3 N. Y. Cr. Rep. 434. See, also, People v. Bork, 2 id. 177.

§ 544. New trial. When a new trial is ordered, it shall proceed in all respects as if no trial had been had.

See § 462, ante.

In People v. Cignarale, 110 N. Y. 33, the court say: "We deem it unnecessary to consider whether the legislature by sections 464 and 544 of the Code of Criminal Procedure have changed the rule that a conviction for a lesser grade of an offense, or of one or two offenses charged in an indictment, imports an acquittal of the higher grade of the offense or of the other distinct offense." But see People v. Palmer, 109 N. Y. 413; 5 N. Y. Cr. Rep. 109.

§ 545. Defendant to be discharged on reversal of judgment against him, where new trial is not ordered. — If a judgment against the 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.

See People v. Johnson, 4 N. Y. Cr. Rep. 591.

546. Judgment to be executed on affirmance against the defendant.-On a judgment of affirmance against the defendant, the original judgment must be carried into execution as the appellate court may direct, and if the defendant be at large, a bench warrant may be issued for his arrest. If a judgment be corrected, the corrected judgment must be carried into execution as the appellate court may direct.

547. Judgment of appellate court, how entered and remitted. When the judgment of the appellate court is given, it must be entered in the judgment book, and a certified copy of the entry forthwith remitted to the clerk with whom the original judgment roll is filed, or, if a new trial be ordered in another county, to the clerk of that county, unless the judgment be rendered in the absence of the adverse party, in which case, the court may direct it to be retained, not exceeding ten days.

§ 548. Papers returned to be remitted. The decision of the court and the return shall be remitted to the court below in the same form and manner as in civil actions.

$549. Jurisdiction of appellate court ceases, after judg ment remitted. After the certificate of the judgment has been remitted, as provided in section five hundred and forty-seven, 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 certificate is remitted, or by any court to which the cause may thereafter be removed.

TITLE XII.

OF MISCELLANEOUS PROCEEDINGS.

CHAPTER I. Bail.

II. Compelling the attendance of witnesses.
III. Examination of witnesses, conditionally.

IV. Examination of witnesses, on commission.

V. Inquiry into the insanity of the defendant, before or during the trial, or after conviction.

VI. Compromising certain crimes, by leave of the court.

VII. Dismissal of the action, before or after the indictment for want of prosecution or otherwise.

VIII. Remitting the punishment, in certain cases.

IX. Proceedings against corporations.

X. Entitling affidavits.

XI. Errors and mistakes, in pleadings and other proceedings.
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 an appeal.

V Deposit, instead of bail.

VI. Surrender of the defendant.

VII. Forfeiture of the undertaking of bail, or of the deposit of money.
VIII. Re-commitment of the defendant, after having given bail, or

deposited money instead of bail.