defendant be at large, a warrant may be issued by the court of appeals or a judge thereof, or by the supreme court or a justice thereof, directing any sheriff or other officer to bring the defendant before the court of appeals or a term of the appellate division of the supreme court thereof, or before a term of the supreme court in that county. Am'd by chap. 880 of 1895. In effect January 1, 1895. Amended by chap. 493 of 1887. This amendment inserted twice in the original section the words "the court of appeals or a judge thereof, or," and "the court of appeals, or." Amended by chap. 489 of 1888. This amendment substituted in the section, as amended in 1887, the words "agent and warden or other officer in whose custody said defendant may be," for the word "sheriff." See notes under section 491, ante. See notes under section 549, post. This and the following section were intended to enact a general rule to prevent a failure in carrying out the sentence of the court in capital cases, where the day of execution has for any reason whatever passed. People v. Lyons, 17 St. Rep., 769; 6 N. Y. Cr., 134; 2 N. Y. Supp., 605, 606. The provisions of this and the next section apply only to cases where the application for the re-sentencing of the prisoners is made by the attorney general or district attorney. Id. This section requires the appellate court to correct an erroneous judgment, but makes no provision for remitting the case to the trial court. People v. Griffin, 15 W. Dig., 294. The appellate court is required to pass the proper sentence. Id. § 504. Court to inquire, and may issue warrant for execution. Duty of agent and warden.-Upon the defendant being brought before the court, it must inquire into the circumstances, and if no legal reason exists against the execution of the sentence, it must issue its warrant to the agent and warden of the state prison mentioned in the original warrant and sentence, under the hands of the judge or judges, or a majority of them, of whom the judge presiding must be one, commanding the said agent and warden to do execution of the sentence during the week appointed therein. The warrant must be obeyed by the agent and warden accordingly. The time of the execution within said week shall be left to the discretion of the agent and warden, to whom the warrant is directed; but no previous announcement of the day or hour of the execution shall be made, except to the persons who shall be invited or permitted to be present at said execution as hereinafter provided. Amended by chap. 489 of 1888. This amendment substituted the agent or warden of the state prison for the sheriff, and added the last part of the present section. See notes under the preceding section. See notes under section 491, ante. $505. Death penalty, infliction by current of electricity.-The punishment of death must in every case, be inflicted by causing to pass through the body of the convict a current of electricity of sufficient intensity to cause death, and the application of such current must be continued until such convict is dead. Amended by chap. 489 of 1888. This amendment changed the mode of inflicting the death penalty from hanging to current of electricity. See notes under section 491, ante. Constitutional. The provisions of chap. 489 of 1888 are not, upon their face, repugnant to the state constitution. People ex rel. Kemmler . Durston, 27 St. Rep., 967; 55 Hun, 65; 7 N. Y. Cr., 364; 7 N. Y. Supp., 813; aff❜g 7 N. Y. Cr., 355; and aff'd 30 St. Rep., 203; 119 N. Y., 575. Effect of amendment.-Chap. 489 of 1888 amended the Code of Criminal Procedure in respect to the time, mode and place of inflicting the death penalty. Id. Warrant.-A warrant which directs that execution be done by putting defendant to death in the mode, manner and way, and at the place by law prescribed and provided, is sufficient. McElvaine v. Brush, 8 N. Y. Cr., 306. § 506. Punishment, where inflicted.-The punishment of death must be inflicted within the walls of the state prison designat ed in the warrant, or within the yard or inclosure adjoining thereto. Amended by chap. 489 of 1889. This amendment changed the place of punishment from county jail to state prison. See notes under section 491, ante. § 507. Executions, who to be present at post-mortem examina tion. Disposition of body. Religious services, provision as to. Misdemeanor. It is the duty of the agent and warden to be present at the execution, and to invite the presence, by at least three days' previous notice, of a justice of the supreme court, the district attorney, and the sheriff of the county where the conviction was had, together with two physicians and twelve reputable citizens of full age, to be selected by said agent and warden. Such agent and warden must at the request of the criminal, permit such ministers of the gospel, priests or clergymen of any religious denomination, not exceeding two, to be present at the execution; and in addition to the persons designated above, he shall also appoint seven assistants or deputy sheriffs who shall attend the execution. He shall permit no other person to be present at such execution except those designated in this section. Immediately after the execution a post-mortem examination of the body of the convict shall be made by the physi cians present at the execution, and their report in writing stat ing the nature of the examination, so made by them, shall be annexed to the certificate hereinafter mentioned and filed therewith. After such post-mortem examination, the body, unless claimed by some relative or relatives of the person so executed, shall be interred in the graveyard or cemetery attached to the prison, with a sufficient quantity of quick-lime to consume such body without delay; and no religious or other services shall be held over the remains after such execution, except within the walls of the prison where said execution took place, and only in the presence of the officers of said prison, the person conducting said services, and the immediate family and relatives of said deceased prisoner. Any person who shall violate or omit te comply with any provision of this section shall be guilty of a misdemeanor. Amended by chap. 31 of 1887. This amendment substituted for what came, in the original section, after the provision for the presence of the relatives, a provision for the attendance of seven assistants or deputy sheriffs, etc. Am'd by chap. 489 of 1888. This amendment substituted the agent and warden for the sheriff, and added provisions for post-mortem examination, disposition of body, religious services and newspaper account of execution. Am'd by chap. 16 of 1892. This amendment made the appointment of seven assistants or deputy sheriffs imperative, and omitted the provision as to newspaper account of execution. See notes under section 491, ante. § 508. Certificate as to execution and post-mortem; how filed.— The agent and warden attending the execution must prepare and sign a certificate, setting forth the time and place thereof, and that the convict was then and there executed, in conformity to the sentence of the court and the provisions of this Code, and must procure such certificate to be signed by all the persons present and witnessing the execution. He must cause the certificate, together with the certificate of the post-mortem examination mentioned in the preceding section, and annexed thereto, to be filed within ten days after the execution, in the office of the clerk of the county in which the conviction was had. Amended by chap. 489 of 1888. This amendment substituted the agent and warden for the sheriff, required the certificate of execution to be signed by all the persons present and witnessing the execution instead of certain named officers and persons, and the certificate of the post-mortem examination to be filed. See notes under section 491, ante. § 509. Principal keeper of state prison, when to execute warrant.-In case of the disability, from illness or other sufficient cause, of the agent and warden to whom the death warrant is directed, to be present and execute said warrant, it shall be the duty of the principal keeper of said prison, or such officer of said prison as may be designated by the superintendent of state prisons, to execute the said warrant, and to perform all the other duties by this act imposed upon said agent and warden. Amended by chap. 489 of 1888. This amendment virtually repealed the original section requiring the warrant, in a certain case, to be executed by the sheriff of an adjoining county, and substituted the present section. See notes under section 491, ante. [§ 10. Nothing contained in any provision of this act applies to a crime committed at any time before the day when this act takes effect. Such crime must be punished according to the provisions of law existing when it is committed, in the same manner as if this act had not been passed; and the provisions of law for the infliction of the penalty of death upon convicted criminals, in existence on the day prior to the passage of this act, are continued in existence and applicable to all crimes punishable by death, which have been or may be committed before the time when this act takes effect. A crime punishable by death committed after the beginning of the day when this act takes effect, must be punished according to the provisions of this act, and not otherwise. § 11. All acts and parts of acts inconsistent with the provi sions of this act are hereby repealed. § 12. This act shall take effect on the first day of January one thousand eight hundred and eighty-nine, and shall apply to all convictions for crimes punishable by death, committed on or after that date.] These sections formed part of the amendment of 1888 to the Code sections relative to the death penalty, and provided for the time of its operation, and the extent of its repealing power. 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. 512. Persons so adjudged when liable to arrest and punishment. 513. Id.; evidence of character, etc. 514. Id.; always liable to search, etc. § 510. When convict may be adjudged an habitual criminal.— When a person is hereafter 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. See sections 690-692 of Penal Code. The act of 1873, called "The Habitual Criminal Act," was constitutional, People v. McCarthy, 45 How., 97. § 511. Judgment accordingly, how entered, etc.-The judg ment 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 depart ment 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 pun ishment 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. See subd. 9 of section 899, post. § 513. Id.; 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. Id.; 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. 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, etc. 516. Parties, how designated on appeal. 517. Appeals in cases of death penalty, direct to court of appeals. 518. In what cases, by the people. 519. Appeal to the court of appeals. 520. Appeal, a matter of right. 521. Time of appeal. 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, etc. 529. Certificate of stay not to be granted, but on notice to district attorney. 530. Effect of the stay. 531. Same. 532. Transmitting the papers to the appellate court. |