§ 514. Persons so adjudged when liable to arrest and punishment; 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 1. 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. Appeal to the court of appeals.

520. Appeal, a matter of right.

521. Must be taken within one year.

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, etc.

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.

8515. Writs of error and of certiorari abolished; ap. peal substituted.- Writs of error and of certiorari, in crimi nal actions, and proceedings and special proceedings of a criminal nature, as they have heretofore existed, are abolished; and here

after the only mode of reviewing a judgment or order in a criminal action, or special proceeding of a criminal nature, is by appeal. See People v. Dempsey, 66 How. Pr. 378; People v. Vitan, 20 Abb. N. C. 298; Killoran v. Barton, 26 Hun, 648; People v. Carney, 29 id. 47; 1 N. Y. Cr. Rep. 270; People v. Dempsey, 31 Hun, 526; 2 N. Y. Cr. Rep. 117; People v. Havens, 3 id. 287; 21 Week. Dig. 364; People v. Palmer, 109 N. Y. 419; People, ex rel., v. Walsh, 33 Hun, 346; 67 How. Pr. 484; 2 N. Y. Cr. Rep. 326; People, ex rel., v. Kelly, id. 430; 32 Hun, 538; 97 N. Y. 212; McKeon v. People, 1 N. Y. Cr. Rep. 456; 16 Week. Dig. 347; People, ex rel., v. Superintendent, 9 State Rep. 608; 45 Hun, 55; People, ex rel., v. Walsh, 5 N. Y. Cr. Rep. 527; Tillotson v. Smith, 12 State Rep. 331.

$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. 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.

See People v. Palmer, 109 N. Y. 419; People v. Petrea, 30 Hun, 98, 102; People v. Mangano, 29 id. 263; Ostrander v. People, id. 519; People v. Beckwrath, 42 id. 268; 5 N. Y. Cr. Rep. 234; People v. Osterhout, 34 Hun, 262; 3 N. Y. Cr. Rep. 146; People v. McQuade, 110 N Y. 284; 21 Abb. N. C. 448; People v. Lyons, 17 State Rep. 768; People v. Bork, 1 N. Y. Cr. Rep. 393; People v. Petmecky, 2 ia. 458; People v. Havens, 3 id. 287; People v. Hovey, 30 Hun, 354. 357; Shufflin v. People, 4 id. 16; People v. Schad, 58 Hun, 572

8518. In what cases by the people.- An appeal to the appellate division of 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.

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

An appeal may be taken by the people upon a judgment for the defendant on a demurrer to the indictment. People v. Callahan, 29 Hun, 581. 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. Cr. Rep. 117; 66 How. Pr. 371.

In what cases an appeal may be taken by people in criminal case. Id.

No appeal lies by the people from an order granting a new trial upon the ground of newly-discovered evidence. People v. Beckwith, 42 Hun, 367; 5 N. Cr. Rep. 233, 235.

No appeal can be taken by the people from a judgment of a court of sessions reversing on an appeal taken thereto a judgment of a court of special sessions convicting the defendant of an assault. People v. Snyder, 44 Hun, 193.

§ 519. Appeal to the court of appeals. An appeal may be taken from a judgment or order of the appellate division 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 from an order affirming, vacating or reversing an order of the court arresting judgment; 3. From a final determination affecting a substantial right of a defendant,

In effect, as amended, Jan. 1, 1896; Laws 1895, chap. 80.

See People v. Lawrence, 107 N. Y. 607; People v. Boas, 92 id. 560, 563; Moett v. People, 26 Hun, 394; 14 Week. Dig. 125.

An appeal from an order of the general term granting a new trial will not lie to the court of appeals unless the order shows that the new trial was refused upon the facts and was granted only for errors of law. People v. Poucher, 99 N. Y. 610; 21 Week. Dig. 410.

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 trial. People v. Mangano, 29 Hun, 259.

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

See People v. Palmer, 109 N. Y. 419.

$ 521. Must be taken within one year.-An appeal must be taken within one year after the judgment was rendered or the order entered. [Amended 1892, ch. 189; in effect March 24, 1892.

§ 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.

§ 523. 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 resi dent 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.

See People v. Snyder, 44 Hun, 193.

§ 525. Appeal, how taken. At the expiration of the time appointed for the publication, on filing an affidavit of the publi cation, 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.

See People v. Snyder, 44 Hun, 193.

527. Stay of proceedings, on appeal, etc.— An appeal to the appellate division of the supreme court from a judg ment of conviction, or other determination from which an appeal can be taken, stays the execution of the judgment or determina- | tion 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.

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

See § 543, post; People v. Beckwith, 108 N. Y. 76; People v. Willett, 1 How. Pr. (N. S.) 196; 3 N. Y. Cr. Rep. 56; People v. Wentworth, id. 116; People v. Norton, 35 Hun, 666; 3 N. Y. Cr. Rep. 402; People v. Osterhout, id. 446; 34 Hun, 262; People v. Reacey, 38 id. 426; 4 N. Y. Cr. Rep. 19; People v. Sulli

van, id. 198; People v. Joyce, id. 345; People v. Druse, 5 id. 15; People v. McInerney, 5 N. Y. 48; People v. Meyers, 7 State Rep. 220; 5 N. Y. Cr. Rep. 124; 7 State Rep. 217; People v. Shepherd, 44 Hun, 566; 5 N. Y. Cr. Rep. 138; Moett v. People, 14 Week. Dig. 125; People v. Shreeney, 41 Hun, 343; 4 N. Y. Cr. Rep. 275; Horace v. People, 21 Week. Dig. 111; People v. Wileman, 44 Hun. 186; People v. Thornton, 46 id. 645; People v. Emerson, 20 State Rep. 16; People v. Huntington, 17 id. 326: Shepherd v. People, 19 N. Y. 545; Sullivan v. People, 1 Park. 347; People v. Hendrickson, id. 396; People v. Lohman, 2 Barb. 450; Pople v. Folmsbee, 60 id. 480; People v. O'Reilly, 61 How. Pr. 16.

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.

The certificate mentioned in this section can, in a proper case, be given in any case in which an appeal may be taken. People v. Bork, 1 N. Y. Cr. Rep. 393. See People v. Sharp (Special T., Potter, J.), 9 State Rep. 157.

The case requires the same examination on appeal as if all the objections and exceptions ordinarily used to present the effect of the evidence for review, were taken upon the trial. People v. Majone, 12 Abb. N. C. 187; 91 N. C. 211; People v. Williams, 29 Hun, 520.

Prior to the amendment of 1887, it was held that the operation of this section was confined to the supreme court. People v. Bous, 92 N. Y. 563; People v. Hovey, id. 554; People v. Donovan, 101 id. 632; 4 N. Y. Cr. Rep. 88; 3 How. Pr. (N. S.) 356; People v. Guidici, 100 N. Y. 508; 3 N. Y. Cr. Rep. 551; People v. Petmecky, id 288. But see People v. McGloin, 91 N. Y. 241; 12 Abb. N. C. 172; 1 N. Y. Cr. Rep. 160.

The powers granted to the court of appeals by this section should be exercised with great circumspection. People v. Jones, 3 N. Y. Cr. Rep. 254. See People v. Greenwall, 115 N. Y. 520.

In determining whether a new trial should be granted under this section, it is not the province of this court to review and determine controverted questions of fact arising upon conflicting evidence. People v. Cignarale, 110 N. Y. 23. See, also, People v. Kelly, 113 id. 647; People v. Stone, 117 id. 483.

§ 528. 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 appellate division 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 a justice of the appellate division of the supreme court, that in his opinion there is reasonable doubt whether the judgment should stand, but not otherwise. When the judgment is of death, an appeal to the court of appeal stays the execution of course until the determination of the appeal. When the judgment is of death, the court of appeals may order a new trial, if it be satisfied that the verdict 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.

In effect, as amended, May 14, 1897; Laws 1897, chap. 427.

See Moett v. People, 14 Week. Dig. 125; People v. Hovey, 92 N. Y. 554; People v. Willett, 3 N. Y. Cr. Rep. 56; People v. Greenwall, 115 N. Y. 520; People v. Willson, 109 id. 349; People v. Van Brunt, 108 id. 657.

In People v. Driscoll, 107 N. Y. 417, the court say: This provision (the above section) has very much enlarged the jurisdiction and the labors of this court, and requires us to review the facts in every capital case, and to deter