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CHAPTER II.

SECOND OFFENSES, HABITUAL CRIMINALS AND SPECIAL PENAL

DISCIPLINE.

SECTION 510. When convict may be adjudged an habitual criminal. 511. Judgment accordingly, how entered etc.

512. Persons so adjudged when liable to arrest and punishment. 513. Persons so adjudged when liable to arrest and punishment; evidence of character on subsequent trial.

514. Persons so adjudged when liable to arrest and punishment; always liable to search, etc.

§ 510. When convict may be adjudged an habitual criminal.— When a person is thereafter convicted of a felony, who has been, before that conviction, convicted in this state of any other crime, he may be adjudged by the court, in addition to other punishment inflicted upon him, to be an habitual criminal. A person convicted of a misdemeanor, who has been already five times convicted in this state of a misdemeanor may be adjudged by the court in addition to, or instead of, other punishment, to be an habitual criminal.

Laws 1873, ch, 357; see Penal Code §§ 690, 691, 692.

(a) Second offense.-To justify the sentence to an increased punishment for a second offense the second offense must have been committed after conviction for the first. (People v. Butler, 3 Cow., 347.) First conviction must have been in this state.

(People v. Cæsar, 1 Park., 645.)

§ 511. Judgment accordingly, how entered, etc.--The judgment specified in the last section must be entered in a separate book, kept for that purpose. A copy of the entry, duly certified by the clerk of the court, is proof of the judgment, and a copy, so certified, must be forthwith transmitted to the police department of each city, and to the district attorney of each county in the state.

§ 512. Persons so adjudged when liable to arrest and punishment. A person who has been adjudged an habitual criminal is liable to arrest summarily with or without warrant, and to punishment as a disorderly person, when he is found without being able to account therefor, to the satisfaction of the court or magistrate, either,

1. In possession of any deadly or dangerous weapon, or of any tool, instrument or material, adapted to, or used by criminals for the commission of crime; or

2. In any place or situation, under circumstances giving reasonable ground to believe that he is intending or waiting the opportunity to commit some crime.

(a) No jury trial.-A person arrested under this section is not entitled to a jury trial. (People v. McCarthy, 45 How., 97.)

§ 513. Persons so adjudged when liable to arrest and punishment; evidence of character on subsequent trial. A person who, having been adjudged an habitual criminal, is charged with a crime committed thereafter, may be described in the complaint, warrant or indictment therefor, as an habitual criminal; and, upon proof that he has been adjudged to be such, the prosecution may introduce, upon the trial or examination, evidence as to his previous character, in the same manner and to the same extent as if he himself had first given evidence of his character and put the same in issue.

$514. Persons to adjudged when liable to arrest and punish ment; always liable to search, etc. The person and the premises of every one who has been convicted and adjudged an habitual criminal shall be liable at all times to search and examination by any magistrate, sheriff, constable, or other officer, with or without warrant.

TITLE XI.

OF APPEALS.

CHAPTER I. Appeals, when allowed, and how taken.
II. Dismissing an appeal for irregularity.

III. Argument of the appeal.

IV. Judgment upon appeal.

CHAPTER I.

APPEALS, WHEN ALLOWED, AND HOW TAKEN.

SECTION 515. Writs of error and of certiorari abolished; appeal substituted.

516. Parties, how designated on appeal.

517. In what cases appeal may be taken by defendant.

518. In what cases by the people.

519. In what cases generally.

520. Appeal, a matter of right.

521. Must be taken within one year after judgment.

522-525. Appeal, how taken.

526. Appeal by the people, not to stay or affect the judgment until reversed.

527. Stay of proceedings, on appeal to supreme court from judgment

of conviction.

528. Stay, upon appeal to court of appeals from judgment of supreme

court, affirming judgment of conviction.

529. Certificate of stay not to be granted, but on notice to district attorney.

530, 531. Effect of the stay.

532. Transmitting the papers to the appellate court.

§ 515. (Amended 1884.) Writs of error and of certiorari abol

ished; appeal substituted.-Writs of error and of certiorari, in criminal actions, and proceedings and special proceedings of a criminal nature, as they have heretofore existed, are abolished; and hereafter the only mode of reviewing a judgment or order in a criminal action, or proceeding or special proceeding of a criminal nature, is by appeal.

The only office of the writ of certiorari obtained with a writ of habeas corpus, is in aid of the latter writ, and only issues to obtain knowledge of the cause of detention. People ex rel. Reavy v. Walsh, 5 N. Y. Crim Rep., 524.)

§ 516. 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.

§ 517. (Amended 1887.) In what cases appeal may be taken by defendant.-An appeal to the supreme court may be taken by the defendant from the judgment on a conviction after indictment, except that when the judgment is of death the appeal must be taken direct to the court of appeals, and, upon the appeal, any actual decision of the court in an intermediate order or proceeding forming a part of the judgment-roll, as prescribed by section four hundred and eighty-five, may be reviewed.

New.

(a) No appeal lies, when.-No appeal lies from an order denying a motion to set aside the judgment etc., made at over and terminer when the defendant appears for the purpose of having a day fixed for the execution of the sentence, after an appeal from judgment of conviction has been affirmed at general term. (Ostrander v. People, 1 N. Y., Cr. R. 274.)

(b) No appeal lies.-No appeal lies from an order denying a new trial on the ground of newly discovered evidence. People v. Hovy 1 N. Y., Cr. R. 324. 93 N. Y., 651.

(c) An appeal may be taken from an order denying a motion to arrest judgment. People v. Bork, 1 N. Y., Crim. R. 393.

(d) When an appeal may be taken from a judgment of conviction in a court of sessions, where the case was sent for trial by the oyer and terminer. People v. Callahan, 29 Hun. 580.

(e) No appeals before filing judgment roll.-No appeal will lie before a filing of a judgment roll on conviction, from an order denying a motion to set aside an indictment, and this, though both parties consent to the hearing of such appeal. People v. Havens, 3 N. Y., Cr. R. 286.

(f) Other appeals excluded.-The legislature by prescribing the mode of review of intermediate orders in connection with a review of the judgment on conviction, has excluded other appeals from such orders. Ib.

§ 518. (Amended 1882.) In what cases by the people.-An appeal to the supreme court may be taken by the people in the following cases, and no other:

1. Upon a judgment for the defendant, on a demurrer to the indictment;

2. Upon an order of the court arresting the judgment.

(a) When People cannot appeal.-No appeal can be taken by the people from an order in a criminal case setting aside and discharging the grand jury as to a defendant and as to him quashing the indictment. People v. Dempsey, 31 Hun, 526; 2 N. Y., Crim. R. 117;

§ 519. In what cases generally.-An appeal may be taken from the judgment of the supreme court to the court of appeals in the following cases, and no other:

1. From a judgment affirming or reversing a judgment of

conviction;

2. From a judgment affirming or reversing a judgment for the defendant, on a demurrer to the indictment, or on an order of the court arresting the judgment;

3. From a final determination affecting the substantial right of a defendant.

(a) When People cannot appeal.-Unless the order of the General Term shows that the supreme court has exercised its discretion and refused a new trial upon the facts, and granted it only for errors of law, the court of appeals will not review it. People v. Boas, 92 N. Y., 560. People v. Poucher, J. 99 N. Y., 610. N. Y., 610. Breslin v. Lawrence, 13 N. Y. State Rep., 108.)

(b) Jurisdiction of Court of Appeals on appeal.-The jurisdiction of the court of appeals is confined to the correction of errors of law presented in the records brought before it. People v. Boas, 92 N. Y., 560.

Unless otherwise especially provided, will not review matters of fact.

Ib.

(c) An appeal from a judgment in a criminal case brings before the general term for review the decision of a motion for a new trial on the ground that the verdict was against evidence as well as the proceedings upon the brief. People v. Mangano, 29 Hun, 259. See 1 N. Y., Crim. R. 417.

§ 520. Appeal in matter of right.-All appeals provided for in this chapter may be taken as a matter of right.

§ 521. Must be taken within one year after judgment.-An appeal must be taken within one year after the judgment was

rendered.

§ 522. Appeal how taken.-An appeal must be taken by the service of a notice in writing on the clerk with whom the judgment-roll is filed, stating that the appellant appeals from the judgment.

$223. Appeal, how taken.-If the appeal be taken by the defendant a similar notice must be served on the district attorney of the county in which the original judgment was rendered.

§ 524. Appeal, how taken.-If it be taken by the people, a similar notice must be served on the defendant, if he be a resident of, or imprisoned in the city or county; or if not, on the counsel, if any, who appeared for him on the trial, if he reside or transact his business in the county. If the service cannot, after due diligence, be made, the appellate court, upon proof thereof, may make an order for the publication of the notice, in such newspaper, and for such time as it deems proper.

$525. Appeal, how taken.-At the expiration of the time appointed for the publication, on filing an affidavit of the publication, the appeal becomes perfected.

$526. Appeal by the people, not to stay or affect the judgment until reversed. An appeal taken by the people, in no case stays or affects the operation of a judgment in favor of the defendant, until the judgment is reversed.

$ 527. (Amended 1887.) Stay of proceedings, on appeal to supreme court from judgment of conviction.-An appeal to the supreme court from a judgment of conviction, or other determina

tion from which an appeal can be taken, stays the execution of the judgment or determination upon filing, with the notice of appeal, a certificate of the judge who presided at the trial, or of a justice of the supreme court, that, in his opinion, there is reasonable doubt whether the judgment should stand, but not otherwise. And the appellate court may order a new trial if it be satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below.

New.

(a) Certificate.-The certificate mentioned can, in a proper case, be given in any case where an appeal can be taken, People v. Bork, 1 N. Y., Cr., R. 393. (b) Only question to be considered on an application.-It is no answer to an application, that the evidence leaves an impression of guilt. The only question is, did anything occur on that trial which leaves a reasonable doubt if the judgment will stand, not as to whether it will be affirmed. People v. Wentworth, 3 N. Y., Cr. R. 111.

(c) When new trial granted.-A new trial should be ordered if in any aspect of the case error was committed in the progress of the trial, the narrow and technical rules are abrogated. People v. Williams, 1 N. Y., Cr R. 336.

(d) Misdirection of the judge. For a misdirection of the presiding judge, which probably had weight with the jury's decision, a new trial will be granted although no exception had been taken to such misdirection. (People v. Sweeny, 4 N. Y. Cr. R., 276.)

(e) Exception insufficient. -If the exception taken fails to be sufficiently specific to distinctly present the question, yet if it is apparent that defendant has been injured, a new trial will be granted. (People v. Sullivan, 4 N. Y. Cr. R., 198.)

To justify a reversal by the appellate court upon the grounds laid down in this section, it must be quite apparent that the verdict was against a substantial and preponderating weight of evidence. (People v. McInery & McDonald, 5 N. Y. Cr. R., 47.)

(f) This section does not apply to court of appeal.-Exceptions must be taken to make error available in court of appeal. (People v. Donovan, 4 N. Y. Cr. R., 86. 101 N. Y., 632.)

The provisions providing that "the appellate court may order a new trial if it is satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice required a new trial, whether any exceptions shall have been taken or not," applies only to appeals to the supreme court, and was intended to be exercised by the supreme court alone, and this court has no authority to review a judgment in a criminal action unless exceptions have been regularly and properly taken to the rulings of the trial court. (Ib.)

() When will not review decision of supreme court.-The power conferred on supreme court by this section is discretionary, and where it does not appear that the discretion has been abused, its decision is not reviewable here. (People v. D'Argencour, 95 N. Y., 624.)

§ 528. (Amended 1887.) Stay upon appeal to court of appeals from judgment of supreme court, affirming judgment of conviction.An appeal to the court of appeals, from a judgment of the supreme court, affirming a judgment of conviction, stays the execution of the judgment appealed from, upon filing with the notice of appeal, a certificate of a judge of the court of appeals or of the supreme court, that in his opinion there is reasonable doubt whether the judgement should stand, but not otherwise. When the judgment is of death, an appeal to the Court of Appeals

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