§ 1226. If female is not pregnant, duty of warden. If it is found that the female is not pregnant, the warden must execute the judgment; if it is found that she is pregnant the warden must suspend the execution of the judgment, and transmit a certified copy of the finding and certificate to the governor. When the governor receives from the warden a certificate that the defendant is no longer pregnant, he must issue to the warden his warrant appointing a day for the execution of the judgment. En. February 14, 1872. Am'd. 1891, 274; 1905, 699.

The change consists in the insertion

of the words "certified copy

of the finding and certificate," and in the addition of the provision relative to the Governor's issuing his warrant upon receiving a certificate from the warden.-Code Commissioner's Note.

Cal. Rep. Cit. 141, 554.

Crim. Prac. Act, sec. 476. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Crim. Prac. Act, sec. 477. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1227. Judgment of death remaining in force, not executed; no appeal from order of court. If for any reason a judgment of death has not been executed, and it remains in force, the court in which the conviction is had, on the application of the district attorney of the county in which the conviction is had, must order the defendant to be brought before it, or if he is at large, a warrant for his apprehension may be issued. Upon the defendant being brought before the court, it must inquire into the facts, and if no legal reason exists against the execution of the judgment, must make an order that the warden of the state prison to whom the sheriff is directed to deliver the defendant execute the judgment at a specified time. The warden must execute the judgment accordingly. From an order directing and fixing the time for the execution of a judgment, as herein provided, there is no appeal. En. February 14, 1872. Am'd. 1891, 274; 1905, 700.

The change consists in the addition of the last sentence, which provides that no appeal can be taken from the order fixing the time for the execution of the judgment.-Code Commissioner's Note. Cal. Rep. Cit. 54, 93; 61, 539; 61, 540; 68, 180; 93, 439; 119, 207; 119, 208; 120, 627; 120, 628; 123, 489; 141, 554.

Crim. Prac. Act, sec. 478. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal. Rep. Cit. 39, 104.

Crim. Prac. Act, sec. 479. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal. Rep. Cit. 39, 104.

§ 1228. Punishment of death, how inflicted. The punishment of death must be inflicted by hanging the defendant by the neck until he is dead. En. February 14, 1872.

Cal. Rep. Cit. 59, 357.

Crim. Prac. Act, sec. 480. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Warrant of execution: Sec. 1217.

§ 1229. Execution, where to take place and who to be present. A judgment of death must be executed within the walls of one of the state prisons designated by the court by which judgment is rendered. The warden of the state prison where the execution is to take place must be present at the execution and must invite the presence of a physician, the attorney-general of the state, and at least twelve reputable citizens, to be selected by him; and he shall, at the request of the defendant, permit such ministers of the gospel, not exceeding two, as the defendant may name, and any persons, relatives or friends, not to exceed five, to be present at the execution, together with such peace officers as he may think expedient, to witness the execution. But no other persons than those mentioned in this section can be present at the execution, nor can any person under age be allowed to witness the same. En. February 14, 1872. Am'd. 1891,

274.

Cal. Rep. Cit. 59, 355; 59, 357; 93, 439; 95, 429.

execu

§ 1230. Return upon death-warrant. After the tion, 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. En. February 14, 1872. Am'd. 1891, 274.

TITLE IX.

OF APPEALS TO THE SUPREME COURT.

Chapter I. Appeals, when Allowed and How Taken, and the Effect Thereof, §§ 1235-1246.

II. Dismissing an Appeal for Irregularity, §§ 1248,

1249.

III. Argument of the Appeal, §§ 1252-1255.
IV. Judgment upon Appeal, §§ 1258-1265.

CHAPTER I.

APPEALS, WHEN ALLOWED AND HOW TAKEN, AND THE EFFECT THEREOF.

§ 1235. Appeal, by whom taken, on questions of law alone.

1236. Parties, how designated on appeal.

1237. Appeal, when may be taken by the defendant.

1238. In what cases by the people.

1239. Appeals, within what time to be taken.

1240. Appeal, how taken.

1241.

1242.

§ 1243.

1244.

When notice may be served by publication.
Effect of an appeal by the people.

Effect of an appeal by the defendant.
Same.

1245. Same.

1246. Duty of clerks upon appeal.

§ 1235. Appeal, by whom taken, on questions of law alone. 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. En. February 14, 1872. Am'd. 1905, 700.

or

The amendment is designed to make the section conform to Article VI, section 4, of the Constitution, which provides that the Supreme Court has jurisdiction "in all criminal cases prosecuted by indictment 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.-Code Commissioner's Note.

Cal. Rep. Cit. 65, 645; 108, 663; 109, 279.

Crim. Prac. Act, sec. 481. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Am'd. 1858, 218; 1863, 162.

Cal. Rep. Cit. 9, 86; 31, 565; 34, 308; 39, 609; 42, 624; 44, 385.

Crim. Prac. Act, sec. 482. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Am'd. 1858, 218; 1866, 306 (in part).

Under the present constitution the appellate jurisdiction of the supreme court in criminal cases extends to "all criminal cases prosecuted by indictment or information in a court of record": Const. Cal. 1879, art. VI, sec. 4.

§ 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. En. February 14, 1872.

Crim. Prac. Act, sec. 483. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1237. Appeal, when 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. En. February 14, 1872. Cal. Rep. Cit. 54, 92; 65, 100; 65, 101; 77, 309; 82, 615; 115, 161; 117, 666; 119, 2; 132, 15; 138, 33. Subd. 1— 119, 57. Subd. 3-95, 595; 119, 209; 136, 20.

§ 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;

En. February 14, 1872. Am'd. 1880, 26; 1897, 195; 1905, 700.

The change consists in the omission of subdivision 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, 28 Cal. Dec., p. 22.)-Code Commissioner's Note.

Cal. Rep. Cit. 65, 79; 65, 644; 113, 474; 114, 68; 114, 69.

70, 18; 71, 546; 107, 478; Subd. 5-114, 64.

§ 1239. Appeals, within what time to be taken. Ap appeal from a judgment must be taken within one year after its rendition, and from an order, within sixty days after it is made. En. February 14, 1872.

Cal. Rep. Cit. 53, 630; 95, 595; 105, 263; 132, 139; 136, 21.

Crim. Prac. Act, sec. 485. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1240. Appeal, how taken. 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. En. February 14, 1872. Am'd. 1905, 701.

The change consists in the omission of the words "or filed," after "entered."-Code Commissioner's Note.

Cal. Rep. Cit. 49, 455; 56, 120; 62, 482; 66, 11; 70, 34; 77, 309; 119, 669.

If

§ 1241. When notice may be served by publication. 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. En. February 14, 1872. Am'd. 1905, 701.

The change consists in the insertion of the words "by affidavit filed therein," after thereof," the present section being entirely silent respecting the mode of proof.-Code Commissioner's Note.

Cal. Rep. Cit. 49, 455.

Crim. Prac. Act, sec. 489.

290. En. 1851, 212.

En. April 20, 1850. Rep. 1851,