Legislation § 1229. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., §§ 506, 507); in substance the same as Stats. 1858, p. 192, § 1. When § 1229 was enacted in 1872, the first part of the section read, "A judgment of death must be executed within the walls or yard of a jail, or some convenient private place in the county. The sheriff of the county must be present at the execution, and must invite the presence of a physician, the district attorney of the county, and at least twelve reputable citizens, to be selected by him," thereafter the section proceeding as the amendment of 1891 (the present section). 2. Amended by Stats. 1891, p. 274. 3. Amendment by Stats. 1901, p. 493; unconstitutional. See note, § 5, ante. § 1230. Return upon death-warrant. 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. [Amendment approved 1891; Stats. 1891, p. 274.] Legislation § 1230. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 508); based on Stats. 1858, p. 193, § 2, which read "Sec. 2. After the execution, the sheriff shall make a return upon the death-warrant, setting forth particularly that said warrant has been executed according to law." When enacted in 1872, § 1230 read: "1230. After the execution, the sheriff must make a return upon the death-warrant, showing the time, mode, and manner in which it was executed." 2. Amended by Stats. 1891, p. 274. TITLE IX. Appeals to the Supreme Court. Chapter I. Appeals, When Allowed and How Taken, and the Effect II. Dismissing an Appeal for Irregularity. CHAPTER I. §§ 1248, 1249. Appeals, When Allowed and How Taken, and the Effect Thereof. § 1235. Appeals, by whom taken on questions of law. § 1236. Parties, how designated on appeal. In what cases an appeal may be taken by the defendant. § 1237. § 1238. § 1246. § 1247. Same. Same. Papers to be transmitted to appellate court. Copy to defendant and district attorney. Settlement of grounds of appeal. § 1217a. Duty of clerk to deliver copies to parties. Proposed corrections. $1247b. When appellant shall transcribe. § 1247c. Further transcription. § 1247d. Time cannot be extended by trial court. § 1247e. Printing in criminal cases. § 1235. Appeals, 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. [Amendment approved 1905; Stats. 1905, p. 700.] Constitutional provision. As to appellate jurisdiction, see Const. 1879, art. vi, § 4. Legislation § 1235. 1. Enacted February 14, 1872; based on Crim. Prac. Act, § 481, as amended by Stats. 1863, p. 161, § 19, and § 482, as amended by Stats. 1858, p. 218, § 2, which read: "Section 481. The party aggrieved in a criminal action, whether that party be the people or the defendant, may appeal as follows: First-To the county court, from a final judgment of a justice's, recorder's, or other inferior municipal court. Second-To the supreme court, from a final judgment of the district court, or county court, in all criminal cases amounting to a felony, on questions of law alone; also, from an order of the district court, or county court, granting or refusing a new trial, or which affects a substantial right in a criminal case amounting to felony, on questions of law alone." "Section 482. The appeal to the supreme court can be taken on questions of law alone. The appeal to the county court can be taken on both questions of law and fact." When enacted in 1872, § 1235 read: "1235. Either party in a criminal action amounting to a felony may appeal to the supreme court, on questions of law alone, as prescribed in this chapter." 2. Amendment by Stats. 1901, p. 494; unconstitutional. See note, § 5, ante. 3. Amended by Stats. 1905, p. 700; the code commissioner saying, "The amendment is designed to make the section conform to art. vi, § 4, of the constitution, which provides that the supreme court has jurisdiction in all criminal cases prosecuted by indictment or information in a court of record, on questions of law alone,' it having been held (in People v. Jordan, 65 Cal. 644) that it has jurisdiction in all such cases, and that if its jurisdiction by appeal is restricted to cases of felony, it would devolve upon it to establish some appropriate system of appellate procedure by which it could review all other convictions based upon an indictment or information." § 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. Legislation § 1236. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 516); in substance the same as Crim. Prac. Act, Stats. 1851, p. 265, § 483. § 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. Defendant cannot appeal from order carrying unexecuted death sentence into effect: See ante, § 1227. Legislation § 1237. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 517); based on Crim. Prac. Act, § 481, q. v., ante, Legislation § 1235. § 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. [Amendment approved 1905; Stats. 1905, p. 700.] Legislation § 1238. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 518); based on Crim. Prac. Act, § 481, q. v., ante, Legislation § 1235. When enacted in 1872, § 1238 read: "1238. An appeal may be taken by the people: 1. From a judgment for the defendant on a demurrer to the indictment; 2. From an order granting a new trial; 3. From an order arresting judgment; 4. From any order made after judgment, affecting the substantial rights of the people." 2. Amended by Code Amdts. 1880, p. 26, (1) in subd. 1, adding "or information" at end of subdivision; (2) adding subd. 5, which read, "5. From an order of the court directing the jury to find for the defendant." 3. Amended by Stats. 1897, p. 195, to read: "1238. An appeal may be taken by the people; 1. From an order setting aside the indietment or information; 2. From a judgment for the defendant on a demurrer to the indictment 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; 6. From an order of the court directing the jury to find for the defendant." 4. Amendment by Stats. 1901, p. 494; unconstitutional. § 5, ante. See note, 5. Amended by Stats. 1905, p. 700; the code commissioner saying, "The change consists in the omission of subd. 6, because the court cannot make the order therein referred to, its action being limited to advising the jury to acquit; and if this advice is followed, an appeal is necessarily unavailing, because a defendant after his acquittal cannot be placed upon trial. (See People v. Stoll, 143 Cal. 689.)" § 1239. Appeal, how taken by defendant. 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; 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. [Amendment approved 1909; Stats. 1909, p. 1086.] How taken from decree removing from office: See ante, § 770. Legislation § 1239. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 521); based on Crim. Prac. Act, Stats. 1851, p. 266, § 485, which read: "§ 485. An appeal must be taken within one year after the judgment was rendered.” When enacted in 1872, § 1239 read: "1239. An appeal from a judgment must be taken within one year after its rendition, and from an order, within sixty days after it is made." 2. Amendment by Stats. 1901, p. 494; unconstitutional. See note, § 5, ante. 3. Amended by Stats. 1907, p. 559, to read: "1239. An appeal from a judgment must be taken within ninety days after its rendition and from an order within sixty days after it is made." 4. Amended by Stats. 1909, p. 1086. § 1240. Appeal by the people. 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. [Amendment approved 1909; Stats. 1909, p. 1086.] Legislation § 1240. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., §§ 522-525); based on Crim. Prac. Act, Stats. 1851, p. 266, §§ 486, 487, 488, which read: "§ 486. An appeal must be taken by the service of a notice in writing on the clerk of the court in which the action was tried, stating that appellant appeals from the judgment. § 487. If the appeal be taken by the defendant, a similar notice must be served on the district attorney of the county in which the judgment was rendered. § 488. If it be taken by the people, a similar notice must be served upon the defendant, if he be a resident of the county; or if not, on the counsel, if any, who appeared for him on trial, if he be living within the county. If such service, after due diligence, cannot be made, the appellate court, upon proof thereof, shall make an order for the publication of due notice in some newspaper, and for such time as it may deem proper." When enacted in 1872, § 1240 read: "1240. An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered or filed, a notice stating the appeal from the same, and serving a copy thereof upon the attorney of the adverse party." 2. Amendment by Stats. 1901, p. 494; unconstitutional. See note, § 5, ante. 3. Amended by Stats. 1905, p. 701, to read: "1240. An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, and serving a copy thereof upon the attorney of the adverse party." 4. Amended by Stats. 1909, p. 1086. § 1241. Clerk must enter notice of appeal. 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. [Amendment approved 1909; Stats. 1909, p. 1086.] Legislation § 1241. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 524); based on Crim. Prac. Act, Stats. 1851, p. 266, §§ 488, 489 (see § 488, quoted supra, Legislation § 1240), § 489 reading, "§ 489. At the expiration of the time appointed for the publication, on filing an affidavit of the publication, the appeal shall be deemed perfected." When enacted in 1872, § 1241 read: "1241. If personal service of the notice cannot be made, the judge of the court in which the action was tried, upon proof thereof, may make an order for the publication of the notice in some newspaper for a period not exceeding thirty days; such publication is equivalent to personal service." 2. Amendment by Stats. 1901, p. 494; unconstitutional. § 5, ante. See note, 3. Amended by Stats. 1905, p. 701, to read: "1241. If personal service of the notice cannot be made, the judge of the court in which the action was tried, upon proof thereof, by affidavit filed therein, may make an order for the publication of the notice in some newspaper, for a period not exceeding thirty days. Such publication is equivalent to personal service." 4. Amended by Stats. 1909, p. 1086. |