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tioned in this section can be present at the execution, nor can any person under age be allowed to witness the same.

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.

TITLE IX.

Of Appeals to the Supreme Court. CHAP. I. APPEALS, WHEN ALLOWED AND HOW TAKEN, AND THE EFFECT THEREOF, §§ 1235-46.

II. DISMISSING AN APPEAL FOR IRREGULARITY,

§§ 1248-9.

III. ARGUMENT OF THE APPEAL, §§ 1252-5.

IV. JUDGMENT UPON APPEAL, §§ 1258-65.

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.

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§ 1246. Duty of clerks upon appeal.

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.

Appeal, when allowed.-The Supreme Court, under the Constitution, had jurisdiction on questions of law alone-55 Cal. 185. An appeal does not lie in cases of misdemeanor-53 Cal. 427. An appeal lies from a judgment for contempt, when the fine is for three hundred dollars-47 Čal. 109. A question of law is where the verdict is complained of as being contrary to the evidence, when there is no evidence to sustain the charge, not when there is evidence tending to prove it-55 Cal. 185. If an appeal has been given in all cases within the jurisdiction of the court, and afterward its jurisdiction is extended to new cases, an appeal will lie in those new cases-4 Mass. 462.

1236. 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. 1237. 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 an order made after judgment, affecting the substantial rights of the party.

In what cases defendant may take.-When the action of the court is manifestly erroneous under any and every conceivable state of the

facts, the Supreme Court will review the case, notwithstanding the evidence may not have been brought up-47 Cal. 405; 8 id. 440; 34 id. 663; 45 id. 25; 32 id. 213; 42 id. 539. If the record discloses the fact that a written instrument introduced in evidence was a forgery, the point may be raised for the first time in the Supreme Court-26 Cal. 546. The action of the court in discharging a jury in a criminal case, because of its inability to agree, is subject to review by the appellate court-41 Cal. 219.

Subd. 1. Under this section an appeal can be taken from such orders only as are made after final judgment-42 Cal. 625. So, an appeal cannot be taken from an order made after a verdict of guilty, arresting the judgment-44 Cal. 385.

Subd. 2. The question whether a defendant in a criminal case is entitled to a new trial, on the ground that the verdict is contrary to the evidence, is one of law-31 Cal. 565. The general rule is, that the court will not review a judgment on this ground, unless the record contains a statement setting forth the material portions of the testimony, but if it states that it gives in substance all that was proven on the part of the State," it is sufficient-9 Cal. 421. An appeal by defendant does not lie from an order granting a new trial-6 Pac. C. L. J. 1013.

Subd. 3. This section applies to orders made after final judgment which could not be reviewed upon an appeal from the judgment-44 Cal. 385; 42 id. 625. Any error committed by the court in setting aside or modifying an erroneous order may be reviewed in a criminal case upon appeal, but not on habeas corpus-44 Cal. 34. Where a party is held in custody under an erroneous order, regular upon its face, which the court had power to make, he cannot be discharged on habeas corpus; his remedy is by appeal-44 Cal. 35; 41 id. 211; 35 id. 100. An appeal lies from an order for execution in a murder case-54 Cal. 93.

1238. An appeal may be taken by the people:

1. From a judgment for the defendant on a demurrer to the indictment or information.

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.

5. From an order of the court directing the jury to find for the defendant. [In effect April 9th, 1880.]

In what cases by the people.-By the just interpretation of this section, the right of appeal by the people must be confined to such cases only in which errors in the proceedings may occur before legal jeopardy has attached-38 Cal. 479. See Const. Prov. ante, p. 17; JEOPARDY, ante, § 1016. The action of the court in discharging a jury because of its inability to agree is subject to review-41 Cal. 212. The remedy is not by habeas corpus-41 Cal. 212.

Subd. 1. An order sustaining a demurrer is a final judgment from which an appeal will lie-39 Cal. 604; 8 Humph. 32; 9 Mo. 687. Query6 Pac. C. L. J. 116. It lies from an order overruling a demurrer-45 Cal. 253.

Subd. 3. An appeal cannot be taken from an order made after a verdict of guilty, arresting the judgment-44 Cal. 385. Where no exception is taken to the denial of a motion in arrest of judgment, and

the record does not set out the evidence on which it was made, the appellate court will presume that the motion was properly overruled -40 Ala. 72.

Subd. 4. Error in setting aside or modifying an erroneous order may be reversed in a proper case on application, but it cannot be questioned on habeas corpus-44 Cal. 34. No appeal lies from an order directing a charge once ignored to be resubmitted to another grand jury. The only orders from which appeals lie are, orders made after final judgment; orders before that are reviewable only on appeal from the final judgment, or an order granting or refusing a new trial-42 Cal. 624; 44 id. 385. No appeal lies from an order of the judge admitting a party to bail under the provisions relating to habeas corpus-40 Cal. 627.

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.

Within what time taken.-An appeal from an order denying a new trial will be dismissed if taken more than sixty days after the order is made-53 Cal. 630.

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.

Appeal, how taken.-A notice of appeal must be filed with the clerk of the court, and served on the attorney of the adverse party either personally or by publication, as directed in the Code-49 Cal. 455. Where it appears that the notice was filed on a certain day, and the service admitted under the indorsement of filing, it will be presumed service was made on the day of filing-6 Pac. C. L. J. 465. A notice of appeal in a criminal case may be signed by any attorney authorized by defendant to take an appeal-6 Pac. C. L. J. 1014.

A recital that notice of application has been served and filed, is no evidence that an appeal has been taken-45 Cal. 45. The record must show that an appeal has in fact been taken, or the court will not be required to look into the case-45 Cal. 45. In the absence of statutory machinery for appeal, a case may be brought to the Supreme Court by writ of error-52 Cal. 220; 5 id. 190; 3 id. 247; 24 id. 334; but a writ of error will not lie when an appeal is given-24 Cal. 334; see 23 Cal. 93.

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. See ante, § 1240, note.

1242. An appeal taken by the people in no case stays or affects the operation of a judgment in favor of the defendant, until judgment is reversed.

PEN. CODE.-43.

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