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of affirmance may be given, without argument, if the appellant fail to appear. But judgment of reversal can only be given upon argument, though the respondent fail to appear.

See People v. Bradner, 44 Hun, 235; 107 N. Y. 1; Barron v. People, 1 Barb.

136.

§ 540. Number of counsel to be heard; defendant's counsel to close the argument. — Upon the argument of the appeal, if the crime be punishable with death, two counsel on each side must be heard if they require it. In any other case the court may, in its discretion, restrict the argument to one counsel on each side. The counsel for the defendant is entitled to the closing argument.

8541. Defendant need not be present. The defendant need not personally appear in the appellate court.

See People v. Clark, 1 Park. 360; reversed, 7 N. Y. 385, without noticing this point.

A prisoner in criminal proceedings can take no action before the court where he has escaped out of custody and still remains at large. People v. Genet, 59 V. Y. 80; 17 Am. Rep. 315; Matter of O'Byrne, 55 Hun, 438; Warwick v. State, 73 Ala. 486; 49 Am. Rep. 59; Sargent v. State, 96 Ind. 93; 5 Crim. Law Mag. 709; Smith v. United States, 94 U. S. 97; Wilson v. Com., 10 Bush, 526; 19 Am. Rep. 76; People v. Redinger, 55 Cal. 290; 36 Am. Rep. 32; M'Gowan v. Pimple, 104 III. 100; 44 Am. Rep. 87. See, also, 41 Am. Dec. 272; 9 Crim. Law Mag. 439; 30 Eng. Rep. 513.

CHAPTER IV.

JUDGMENT, UPON APPEAL.

SECTION 542. Court to give judgment, without regard to technical errors, defects or exceptions, not affecting substantial rights.

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

544. New trial.

545. Defendant to be discharged on reversal of judgment against

him, where new trial is not ordered.

546. Judgment to be executed, on affirmance against the defendant.
547. Judgment of appellate court, how entered and remitted.
548. Papers returned, not to be remitted.

549. Jurisdiction of appellate court ceases, after judgment remitted.

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§ 542. Court to give judgment without regard to technical errors, defects or exceptions, not affecting substantial rights. 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.

See §§ 285, 684; People v. Hagan, 37 State Rep. 661.

The error complained of must have been actually prejudicial to the prisoner People v. Ransom, 7 Wend. 417; Eastwood v. People, 3 Park. 25; People Montgomery, 13 Abb. Pr. 207; Beebe v. People, 5 Hill, 32; People v. Hartung 4 Park. 256; 17 How. Pr. 85; Wilson v. People, 4 Park. 619; 8 Abb. Pr. 137 People v. Gaffney, 14 id. 36; People v. Gray, 5 Wend. 289; Eggler v. People 56 N. Y. 642; People v. Burns, 33 Hun, 300; 2 N. Y. Cr. Rep. 427; People Osterhout, 3 id. 445; 34 Hun, 260; People v. Irving, 2 N. Y. Cr. Rep. 47; 3 Hun, 614; 95 N. Y. 141; People v. Bork, 31 Hun, 360; People v. Buddensiec 103 N. Y. 487, 500; People v. Myers, 5 N. Y. Cr. Rep. 125; People v. Shar 45 Hun, 499, 518; People v. Willett, 27 id. 471; People v. Wentworth, 4 N. Cr. Rep. 214; People v. Druse, 5 id. 33; People v. Johnson, 104 N. Y. 213: N. Y. Cr. Rep. 221; People v. Richards, 44 Hun, 278; 5 N. Y. Cr. Rep. 37 People v. Connor, 53 Hun, 356; People v. McQuade, 110 N. Y. 284; 21 Ab N. C. 419, 433, 435, 436, 449; People v. Upton, 29 State Rep. 779; 4 N. Cr. Rep. 149; People v. Menken, 36 Hun, 91; 3 N. Y. Cr. Rep. 233; People Chacon, 102 N. Y. 669; 4 N. Y. Cr. Rep. 173; People v. Riley, 3 id. 374; Peo v. Dimick, 107 N. Y. 13; People v. Urleman, 44 Hun, 187; Cox v. People, N. Y. 500; Schrumf v. People, 14 Hun, 10.

§ 543. May reverse, affirm or modify the judgmen and order a new trial. Upon hearing the appeal the app late court may, in cases where an erroneous judgment has be entered upon a lawful verdict, correct the judgment to confor to the verdict; in all other cases they must either reverse affirm the judgment appealed from, and in cases of reversal m if necessary or proper, order a new trial.

See § 527,ante; People v. Bradner, 107 N. Y. 12; People v. Palmer, 109 419; 5 N. Y. Cr. Rep. 108; 43 Hun, 408; People, ex rel., v. Risley, 47 N. Y. Rep. 111; 38 Hun, 282; People, ex rel., v. Kelly, 2 N. Y. Cr. Rep. 430: Hun, 538; 97 N. Y. 212.

It is the duty of the appellate court, under this section, to correct a ju ment so that it will conform to the verdict where an erroneous judgment been entered upon a lawful verdict. People v. Griffin, 27 Hun, 595.

Where the conviction is unassailed, and the judgment is reversed for e in the sentence, the appellate court should remit the record to the cour which the conviction was had, to pass such sentence as the appellate c directs. People v. Bauer, 3 N. Y. Cr. Rep. 434. See, also, People v. Bor id. 177.

8 544. New trial. When a new trial is ordered, it shall proceed in all respects as if no trial had been had.

See § 462, ante.

In People v. Cignarale, 110 N. Y. 33, the court say: "We deem it unnecessary to consider whether the legislature by sections 464 and 544 of the Code of Criminal Procedure have changed the rule that a conviction for a lesser grade of an offense, or of one or two offenses charged in an indictment, imports an acquittal of the higher grade of the offense or of the other distinct offense." But see People v. Palmer, 109 N. Y. 413; 5 N. Y. Cr. Rep. 109.

$545. Defendant to be discharged on reversal of judgment against him, where new trial is not ordered. If a judgment against the defendant be reversed, without ordering a new trial, the appellate court must direct, if he be in custody, that he be discharged therefrom, or if he be admitted to bail, that his bail be exonerated, or if money be deposited instead of bail, that it be refunded to the defendant.

See People v. Johnson, 4 N. Y. Cr. Rep. 591.

$546. Judgment to be executed on affirmance against the defendant.-On a judgment of affirmance against the defendant, the original judgment must be carried into execution as the appellate court may direct, and if the defendant be at large, a bench warrant may be issued for his arrest. If a judgment be corrected, the corrected judgment must be carried into execution. as the appellate court may direct.

$547. Judgment of appellate court, how entered and remitted. When the judgment of the appellate court is given, it must be entered in the judgment book, and a certified copy of the entry forthwith remitted to the clerk with whom the original judgment roll is filed, or, if a new trial be ordered in another county, to the clerk of that county, unless the judgment be rendered in the absence of the adverse party, in which case, the court may direct it to be retained, not exceeding ten days.

$548. Papers returned to be remitted. The decision of the court and the return shall be remitted to the court below in the same form and manner as in civil actions.

549. Jurisdiction of appellate court ceases, after judgment remitted. After the certificate of the judgment has been remitted, as provided in section five hundred and forty-seven, the appellate court has no further jurisdiction of the appeal, or of the proceedings thereon; and all orders, which may be necessary to carry the judgment into effect, must be made by the court to which the certificate is remitted, or by any court to which the cause may thereafter be removed.

TITLE XII.

OF MISCELLANEOUS PROCEEDINGS.

CHAPTER I. Bail.

II. Compelling the attendance of witnesses.
III. Examination of witnesses, conditionally.

IV. Examination of witnesses, on commission.

V. Inquiry into the insanity of the defendant, before or during the trial, or after conviction.

VI. Compromising certain crimes, by leave of the court.

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

VIII. Remitting the punishment, in certain cases.

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 indictment.

III. Bail, upon an indictment, before conviction.

IV. Bail, upon an 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. Re-commitment of the defendant, after having given bail,

deposited money instead of bail.

ARTICLE I.

IN WHAT CASES THE DEFENDANT MAY BE ADMITTED TO BAIL.

SECTION 550. Admission to bail, defined.

551. Taking bail, defined.

552. Offenses not bailable.

553. In what cases defendant may be admitted to bail, before con viction.

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

555. Nature of bail before conviction.

556. Nature of bail after conviction and upon appeal.

$550. Admission to bail, defined. When the defendant is held to appear for examination, bail for such appearance may be taken either,

1. By the magistrate who issued the warrant or oefore whom the same is returnable; or,

2. By any judge of the supreme court.

8551. Taking bail, defined.-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.

Article 1, section 5 of the state constitution provides that excessive bail shall not be required, nor excessive fines imposed.

The provision as to excessive bail applies only to criminal proceedings. People v. Tweed, 13 Abb. Pr. (N. S.) 148.

The right to bail existed at common law. People v. Huggins, 10 Wend. 465. The power to admit to bail is incident to the right to hear and determine the offense. People v. Van Horne, 8 Barb. 158; People v. Goodwin, 1 Wheel. C. C. 434; People v. Shattuck, 6 Abb. N, C. 33.

§ 552. Offenses not bailable.

The defendant cannot be admitted to bail except by a judge of the supreme court or by a court of oyer and terminer where he is charged,

1. With a crime punishable with death, or

2. With the infliction of a probably fatal injury upon another, and under such circumstances as that, if death ensue, the crime would be murder.

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