TITLE XI. OF APPEALS. CHAPTER 1. Appeals, when allowed, and how taken. IV. Judgment upon appeal. CHAPTER I. APPEALS, WHEN ALLOWED, AND HOW TAKEN. SECTION 515. Writs of error and of certiorari abolished; appeal substituted. 516. Parties, how designated on appeal. 517. In what cases appeal may be taken by defendant. 518. In what cases by the people. 519. In what cases generally. 520. Appeal, a matter of right. 521. Must be taken within one year after judgment. 522-525. Appeal, how taken. 526. Appeal by the people, not to stay or affect the judgment until reversed. 527. Stay of proceedings, on appeal to supreme court from judgment of conviction. 528. Stay, upon appeal to court of appeals from judgment of supreme court, affirming judgment of conviction. 529. Certificate of stay not to be granted, but on notice to district attorney. 530, 531. Effect of the stay. 532. Transmitting the papers to the appellate court. § 515. (Amended 1884.) Writs of error and of certiorari abolished; appeal substituted.-Writs of error and of certiorari, in criminal actions, and proceedings and special proceedings of a criminal nature, as they have heretofore existed, are abolished; and hereafter the only mode of reviewing a judgment or order in a criminal action, or special proceeding of a criminal nature, is by appeal. New. § 516. 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. New. § 517. In what cases appeal may be taken by defendant. An appeal to the supreme court may be taken by the defendant from the judgment on a conviction after indictment, 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 four hundred and eighty-five, may be reviewed. New. The court has no authority on questions arising on the trial of an indictment except such as is given by statute. In order to present the point relied upon as error an exception must be taken. (Shufflin v. People, 4 Hun, 16.) --- § 518. (Amended 1882.) In what cases by the people. An appeal to the supreme court may be taken by the people in the following cases, and no other: 1. Upon a judgment for the defendant, on a demurrer to the indictment; 2. Upon an order of the court arresting the judgment. Laws 1879, ch. 176; Laws 1880, ch. 538. A new trial cannot be granted when defendant has been acquitted of a felony. (People v. Comstock, 8 Wend., 549; People v. Corning, 2 N. Y., 9.) § 519. In what cases generally. - An appeal may be taken from the judgment of the supreme court to the court of appeals in the following cases, and no other: 1. From a judgment affirming or reversing a judgment of conviction; 2. From a judgment affirming or reversing a judgment for the defendant, on a demurrer to the indictment, or on an order of the court arresting the judgment; 3. From a final determination affecting the substantial right of a defendant. New. (a) Criminal causes preferred. — Criminal causes are preferred. (Rule 11, Ct. of App., and first in order rule 20, Ct. of App.; Code Civil Pro., § 790.) $520. Appeal in matter of right. All appeals provided for in this chapter may be taken as a matter of right. New. § 521. Must be taken within one year after judgment. An appeal must be taken within one year after the judgment was rendered. New. 8522. § 522. Appeal, how taken. An appeal must be taken by the service of a notice in writing on the clerk with whom the judgment roll is filed, stating that the appellant appeals from the judgment. New. § 523. Appeal, how taken.- If the appeal be taken by the defendant a similar notice must be served on the district attorney of the county in which the original judgment was rendered. New. § 524. Appeal, how taken.—If it be taken by the people, a similar notice must be served on the defendant, if he be a resident of, or imprisoned in the city or county; or if not, on the counsel, if any, who appeared for him on the trial, if he reside or transact his business in the county. If the service cannot, after due diligence, be made, the appellate court, upon proof thereof, may make an order for the publication of the notice, in such newspaper, and for such time as it deems proper. New. § 525. Appeal, how taken. At the expiration of the time appointed for the publication, on filing an affidavit of the publi cation, the appeal becomes perfected. New. § 526. Appeal by the people, not to stay or affect the judgment until reversed. An appeal taken by the people, in no case stays or affects the operation of a judgment in favor of the defendant, until the judgment is reversed. New. § 527. (Amended 1882.) Stay of proceedings, on appeal to supreme court from judgment of conviction.-An appeal to the supreme court from a judgment of conviction, or other determination from which an appeal can be taken, stays the execution of the judgment or determination upon filing with the notice of appeal a certificate of the judge who presided at the trial, or of a judge of the supreme court, that in his opinion there is reasonable doubt whether the judgment should stand, but not otherwise, except that when the judgment is of death the appeal stays the exe cution, of course, until the determination of the appeal. And the appellate court may order a new trial if it be satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below. (a) Probable cause of error. - In determining whether a writ of error and stay of proceedings should be granted to enable the prisoner to appeal, it is not necessary for the justice to whom the application is made should arrive at the positive conclusion that the court erred in law. (People v. Hendrickson, 1 Park., 396; 1 id., 347; People v. Lohman, 2 Barb., 450.) (b) Id. — Enough if the judge to whom application is made has a reasonable doubt as to the correctness of the law. (People v. Hendrickson, 1 Park., 396; People v. Lohman, 2 Barb., 450; People v. Folmsbee, 60 Barb., 480.) (c) Gravity of the crime to be considered. - Greater latitude should be allowed in granting certificate for appeal in capital cases than otherwise. People v. O'Reily, 61 How., 16.) 528. (Amended 1882.) Stay, upon appeal to court of appeals from judgment of supreme court, affirming judgment of conviction.-An appeal to the court of appeals, from a judgment of the supreme court, affirming a judgment of conviction, stays the execution of the judgment appealed from, upon filing, with the notice of appeal, a certificate of a judge of the court of appeals or of the supreme court, that in his opinion there is reasonable doubt whether the judgment should stand, but not otherwise, except that when the judgment is of death the appeal stays the execution of course until the determination of the appeal. 3 R. S., 1030, § 29. § 529. Certificate of stay not to be granted, but on notice to district attorney.- The certificate mentioned in the last two sections cannot, however, be granted upon an appeal on a conviction of felony, until such notice as the judge may prescribe has been given to the district attorney of 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 meantime. New. § 530. Effect of the stay. If the certificate, provided in sections five hundred and twenty-seven and five hundred and twenty-eight, be given, the sheriff must, if the defendant be in his custody, upon being served with a copy of the order, keep the defendant in his custody, without executing the judgment, and detain him to abide the judgment upon the appeal. New. § 531. Effect of the stay. 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. New. § 532. Transmitting the papers to the appellate court.Upon the appeal being taken, the clerk, with whom the notice of appeal is filed, must, within ten days thereafter, without charge, transmit a copy of the notice of appeal and of the judgment roll, as follows: 1. If the appeal be to the supreme court, to the clerk of that court, where the next general term in the district is to be held; 2. If it be to the court of appeals, to the clerk of that court. New. Application to amend return should be made to the court where judgment was rendered. (Reid v. Barker, 2 Cow., 408; Rule 3, Ct. App.) CHAPTER II. DISMISSING AN APPEAL FOR IRREGULARITY. SECTION 533. For what irregularity, and how dismissed. § 533. For what irregularity, and how dismissed. — If the appeal be irregular in a substantial particular, but not other wise, the court may, on any day in term, on motion of the respondent, upon five days' notice, served with copies of the papers on which the motion is founded, order it to be dismissed. 3 R. S., 654, § 9. § 534. Dismissal for want of return.— The court may also, upon like motion, dismiss the appeal, if the return be not made, as provided in section five hundred and thirty-two, unless for good cause they enlarge the time for that purpose. 3 R. S., 654. § 10. |