3544. 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 except as provided in section five hundred and forty-three 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.

Amended 1897, chap. 427; in effect May 14, 1897.

CHAPTER I. Bail.

TITLE XII.

OF MISCELLANEOUS PROCEEDINGS.

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, or

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.

§ 551. 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 justice of the supreme court where he is charged,

1. With a crime punishable with death.

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.

In effect, as amended, Jan. 1, 1896; Laws 1895, chap. 880.

If facts do not sustain the charge of murder contained in a warrant, bail may be allowed. People v. Sheriff of Westchester, 1 Park. 159; 10 N. Y. Leg. Obs. 298; People v. Porter, 8 Barb. 168, note.

In a case of manslaughter where there is no reasonable doubt of the prisoner's guilt, bail will not be allowed. Ex parte Tayloe, 5 Cow. 39.

Even in a capital case bail ought to be allowed, unless the proof be evident and the presumption great. People v. Perry, 8 Abb. 27; People v. Hyler, 2 Park. 570: People v. Van Horne, 8 Barb. 158; People v. Cole, 6 Park. 695; 4 Abb. (N. S.) 280.

That a case has been twice tried and the jury in both cases disagreed, presents a proper case for admitting to bail. People v. Perry, 8 Abb. Pr. (N. S.) 27. On a question of bail in a case of homicide the court will look into the examination taken before the coroner. People v. Beigler, 3 Park. 316.

Should be admitted to bail even in a capital case after indictment, if the evidence be not such as to make out a prima facie case of guilt. People v. Baker, 10 How. Pr. 567.

In a capital case a prisoner committed by a regular inquisition of a coroner's jury, if it appear that there is probable cause of guilt, will not be bailed. People v. Collins, 20 How. Pr. 111; 11 Abb. 106.

In a capital case, after a bill found, the prisoner will not be admitted to bail where it is believed the evidence would warrant a conviction. People v. Shattuck, 6 Abb. N. C. 33.

§ 553. In what cases defendant may be admitted to bail, before conviction. If the charge be for any other crime, he may be admitted to bail, before conviction, as follows:

1. As a matter of right, in cases of misdemeanor:

2. As a matter of discretion, in all other cases.

See People v. Naragh, 4 N. Y. Cr. Rep. 299; Matter of Thomas, 2 N. Y. Supp. 39.

A justice of the supreme court has no power to let a prisoner to bail while a court is in session having jurisdiction to try the indictment. People, ex rel. Sherwin, v. Mead, 28 Hun, 227; 92 N. Y. 415.

3554. In what cases he may be admitted to bail, before conviction, etc.- Before conviction, defendant may be admitted to bail:

1. For his appearance before the magistrate on the examination of the charge, before being held to answer.

2. To appear at the court to which the magistrate is required by section two hundred and twenty-one to return the depositions and statements upon the defendant being held to answer after examination.

3. After indictment, either upon the bench warrant issued for his arrest or upon an order of the court committing him or enlarging the amount of bail, or upon his being surrendered by his bail, to answer the indictment in the court in which it is

found, or to which it may be sent or removed for trial. And any captain or sergeant of police, or acting sergeant of police, ir any city or village of this state, must take bail for his appearance before a competent and accessible magistrate the next morning from any person arrested for a misdemeanor between eleven o'clock in the morning and eight o'clock the next morning, just as soon as the person offers himself as bail for the person or persons arrested. When such captain or sergeant of police or acting sergeant of police takes bail, he must take it by an undertaking in the form in this section mentioned, executed in his presence by the defendant and at least one surety, who must justify under oath, or by the personal undertaking of the defenda secured by the deposit of money or personal property accom anied by an oath of ownership, in the cases and in such manner as hereinafer provided; and for these purposes the officer may admiste al necessary oaths. The amount of bail taken by a captain sergeant of police or acting sergeant of police, under this section, must be as follows: If the offense be the violation of a corporation ordinance, the amount of the bail must be one hundred dollars, except that if a conviction upon the charge would render the defendant liable only for a fine, the amount of the bail must be double the largest fine that could be imposed; if the conviction would render him liable to imprisonment for thirty days or less, the amount of the bail must be two hundred dollars. In all other cases the amount of bail must be five hundred dollars. In lieu of a bondsman, if the offense be the violation of a corporation ordinance where the conviction renders the defendant liable to a fine only, he may give his personal undertaking, secured by a deposit with such captain or sergeant of police, or acting sergeant of police, of money or of personal property equal in value to double the largest fine that can be imposed. If personal property, the person making or authorizing the deposit shall take and subscribe an oath that he is the owner thereof, and authorized to make such deposit. A false oath in this particular is declared to be perjury and punishable accordingly. Money or personal property thus deposited conveniently transportable shall be taken to the court, by the officer making the arrest, at the time defendant is required to appear and, upon the conditions of the undertaking being satisfied, it shall be restored to the defendant. If the deposit be personal property, which can not conveniently be brought to court, the defendant shall be entitled to an order from the magistrate directing the delivery thereof to the owner after the conditions of the undertaking have been satisfied,

The form of the undertaking, with surety, must be as follows. We, A B, defendant, and residing at..... in

CD surety, residing at

.......

and

hereby jointly and severally undertake that the above A B, defendant, shall appear and