Court to give judgment without regard to technical

errors.

What may be reviewed

on an

appeal by defendant from a judgment.

May

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

SECTION 1264. Judgment of appellate Court, how entered and remitted. 1265. Jurisdiction of appellate Court ceases after judgment

remitted.

1258. (§ 499.) 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.

NOTE.-A judgment will not be disturbed on account of an erroneous instruction which was not applicable to the facts of the case.—People vs. March, 6 Cal., p. 543. A judgment will not be reversed by reason of errors which do not affect the substantial rights of the parties. People vs. Cronin, 34 Cal., p. 191; People vs. Dick, 32 Cal., p. 213.

1259. (§ 484.) 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.

NOTE.-People vs. Clark, January Term, 1872. Motions for continuance are subject to review on an appeal from the judgment.-People vs. Diaz, 6 Cal., p. 248.

1260. (§ 500.) 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 subsequent to, or dependant upon, such judgment or order, and may, if proper, order a new trial.

NOTE. ERROR MUST AFFIRMATIVELY APPEAR, or the Court will not reverse the judgment.-People vs. King, 27 Cal., p. 507; People vs. Levison, 16 Cal., p. 98; People vs. Bonney, 19 Cal., p. 426; People vs. Connor, 17 Cal., p. 214; People vs. Robinson, 17 Cal., p. 363; People vs. Bealota, 17 Cal., p. 389; People vs. Lafuente, 6 Cal., p. 202.

ERROR IN INSTRUCTIONS.-Errors in instructions will not be reviewed, unless the instructions are embodied in a bill of exceptions, or there is an indorsement thereon, signed by the Judge showing the action of the Court.-People vs. Thompson, 28 Cal., p. 214; People vs. Tetheron, 40 Cal., p. 286; see, also, cases cited, supra. A mere want of perspicuity in an instruction which does not injure the prisoner will not authorize a reversal of the judgment.-People vs.

Moore, 8 Cal., p. 90. If the Court below, in the instructions, assumes a certain state of facts, which facts show the applicability of the instructions, the appellate Court will review the action of the Court below, without any evidence being embodied in the record.-People vs. Dick, 32 Cal., p. 213. And so, too, when the action of the Court below is erroneous under any possible state of facts.-People vs. Dick, 32 Cal., p. 213. The record of the trial need not affirmatively show that the instructions were given in writing; the presumption is that they were so given.-People vs. Chung Lit, 17 Cal., p. $20.

APPEALS FROM ORDERS GRANTING OR REFUSING NEW TRIALS. The question whether a defendant in a criminal case is entitled to a new trial, on the ground that the verdict is contrary to evidence, is one of law, and not one of fact, within the meaning of Sec. 4 of Article VI of the State Constitution.-People vs. Jones, 31 Cal., p. 565. The general rule is that the Court will not review on appeal an order refusing a new trial, moved for on the ground that the verdict is against evidence, unless the record contains a statement setting forth the material portions of the testimony. But if the record states that it gives "in substance all that was proven on the part of the State," it is sufficient. The facts as proved being given obviates the necessity of setting out the testimony.-People vs. York, 9 Cal., p. 421. If a verdict finding the accused guilty is not clearly sustained by the evidence the judgment will be reversed.—People vs. Lewis, 36 Cal., p. 531. On an appeal from an order granting a new trial the appellate Court is confined to a review of the proceedings between issue joined and the rendition of the verdict.-People vs. Turner, 39 Cal., p. 370.

POINTS RAISED FOR THE FIRST TIME.-If the record discloses the fact that a written instrument introduced in evidence in the Court below was a forgery, the point may be raised for the first time in the Supreme Court.— Fuller vs. Furgeson, 26 Cal., p. 546. Objections to an indictment on the ground of omission of certain words, or of uncertainty in the form of an indictment, cannot be raised for the first time in the Supreme Court.People vs. Gatewood, 20 Cal., p. 146.

GENERALLY.-The appellate Court will not reverse a judgment by reason of an alleged error in a proceeding had on the trial by express agreement of the defendant and his counsel, unless bound so to do by some controlling rule of law.-People vs. Henderson, 28 Cal., p. 465. Ye Cow is indicted; Ah Cow arraigned. Ey

New trial, where to be

had.

Defendant, when to be

on reversal

of

judgment.

Chow demands a separate trial, and the verdict is against Ah Cow. Held, that the record is wanting in certainty.-People vs. Ah Cow, 17 Cal., p. 101. In a. criminal case, on appeal, the stipulations of the attorneys cannot be substituted for the certificate of the Judge to the bill of exceptions.-People vs. Trim, 37 Cal., p. 274. The action of the Court below on motion to set aside the indictment, or on demurrer, can only be reviewed on an appeal from the judgment.-People vs. Turner, 39 Cal., p. 370. The notes of evidence taken by the shorthand reporter must be written out and authenticated by his certificate.-People vs. Tetheron, 40 Cal., p. 286.

1261. (§ 501.) 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.

1262. (§ 502.) If a judgment against the defenddischarged ant 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.

Judgment to be executed

on

affirmance.

Judgment of appellate

Court, how entered and remitted.

Jurisdiction of

appellate

Court

1263. (§ 503.) If a judgment against the defendant is affirmed, the original judgment must be enforced.

1264. (§ 504.) When the judgment of the appellate Court is given, it must be entered in the minutes, and a certified copy of the entry forthwith remitted to the Clerk of the Court from which the appeal was taken.

NOTE.-Stats. 1851, p. 212.

1265. (§ 506.) After the certificate of the judg ment has been remitted to the Court below, the appel

ceases after late Court has no further jurisdiction of the appeal or

judgment

remitted.

of the proceedings thereon, and all orders necessary to carry the judgment into effect must be made by the Court to which the certificate is remitted.

NOTE.-People vs. Bonilla, 38 Cal., p. 699. The mode of executing judgments in criminal cases is pre

scribed by statute. Upon the affirmance of an order or judgment no order of the appellate Court directing the Court below to enforce the judgment is necessary.— People vs. Dick, 30 Cal., p. 102.

TITLE X.

MISCELLANEOUS PROCEEDINGS.

CHAPTER I. Bail.

II. Who may be witnesses in criminal

actions.

III. Compelling the attendance of witnesses. IV. Examination of witnesses conditionally. V. Examination of witnesses on commission. VI. Inquiry into the insanity of the defendant before trial or after conviction. VII. Compromising certain public offenses by leave of the Court.

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

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 INDICT

MENT.

ARTICLE III. BAIL UPON AN INDICTMENT BEFORE CONVICTION.

IV. BAIL ON 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. RECOMMITMENT OF THE DEFENDANT AFTER HAVING
GIVEN BAIL OR DEPOSITED MONEY INSTEAD OF
BAIL.

Admission to bail defined.

Taking of bail defined

Offense not bailable.

ARTICLE I.

IN WHAT CASES THE DEFENDANT MAY BE ADMITTED TO BAIL.

SECTION 1268. Admission to bail defined.

1269. Taking of bail defined.

1270. Offense not bailable.

1271. In what cases defendant may be admitted to bail be

fore conviction.

1272. In what cases he may be admitted to bail after conviction and upon appeal.

1273. Nature of bail.

1274. When bail is matter of discretion, notice of application must be given to District Attorney.

1268. (§ 507.) Admission to bail is the order of a competent Court or magistrate that the defendant be discharged from actual custody upon bail.

1269. ($ 508.) The taking of bail consists in the acceptance, by a competent Court or magistrate, of the undertaking of sufficient bail for the appearance of the defendant, according to the terms of the undertaking, or that the bail will pay to the people of this State a specified sum.

1270. (§ 510.) A defendant charged with an offense punishable with death cannot be admitted to bail, when the proof of his guilt is evident or the presumption thereof great. The finding of an indictment does not add to the strength of the proof or the presumptions to be drawn therefrom.

NOTE.-The admission to bail in capital cases, where the proof is evident or the presumption great, may be