§ 515. Writs of error and certiorari abolished, etc.-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. Amended by chap. 372 of 1884. This amendment inserted twice, in the original section, the words "and proceedings and special proceedings of a criminal nature." See notes under section 962, post. The case of People v. Bork, 31 Hun, 360; 2 N. Y. Cr., 56, was reversed in 96 N. Y., 188; 2 N. Y. Cr., 177. Effect of passage of Civil Code.-Chapter 12 of the Code of Civil Procedure does not affect the statutes remaining unrepealed after the first day of September, 1877, touching the review of proceedings in a criminal cause. Section 3347, subd. 9 of Code, Civ. Pro. Abolished.-The writ of certiorari to review in criminal cases has been abolished by this section, and the only way of reviewing is by appeal. People ex rel. Reavey v. Walsh, 5 N. Y. Čr., 527. By the adoption of the Code of Criminal Procedure, writs of error and of certiorari in criminal actions were abolished, and thereafter the only mode of reviewing a judgment or order in a criminal action was by appeal. People v. Palmer, 15 St. Rep., 78; 109 N. Y., 418. All the previous provisions for review have been abolished by this section and now the only mode of reviewing a judgment or order in a criminal action is by appeal. People v. Dempsey, 31 Hun, 527; 2 N. Y. Cr., 121. Appeal. An appeal under the Code of Criminal Procedure is a substitute for a writ of error under the former practice. People v. Bork, 96 N. Y., 188, 200. There is no precedent for an allowance of an appeal in criminal cases outside and independent of the statute. People v. Dempsey, 31 Hun, 528; 66 How., 376. The right of appeal in criminal cases is statutory only, and, in the absence of a statute authorizing an appeal in a given case, no appeal can be taken. People v. Trezza, 40 St. Rep., 482; 128 N. Y., 532. When and on what grounds appeals shall be allowed, are questions for the legislature. People v. Petrea, 30 Hun, 102. A conviction after the passage of the Code of Criminal Procedure, upon an indictment theretofore found, must be reviewed by appeal and not by writ of error. McKeon v. People, 1 N. Y. Cr., 456; 16 W. Dig., 347. The effect of the defendant's appeal is merely to continue the trial under the indictment in the appellate court. People v. Palmer, 15 St. Rep., 78; 109 N. Y., 419. When writ of error proper.-There is doubt whether a writ of erroris not the proper proceeding where the case was pending when the Code was passed. People v. Bork, 96 N. Y., 188, 200. Where the indictment was found and the proceedings were had prior to September 1, 1881, all further proceedings in the case must be conducted as though the Code had not been passed. Willett v. People, 27 Hun, 469, 470. The review in such cases must be made under, and by virtue of a writ of error. Id. Whether an indictment was found by a properly constituted grand jury, and whether the court of general sessions had jurisdiction over the offense, cannot be raised by a writ of certiorari. People ex rel. Reavey v. Walsh, 5 N. Y., Cr. 527. Habeas corpus.-A prisoner in custody under a void sentence upon a valid judgment of conviction, should not be discharged on habeas corpus, but should be remanded to be sentenced according to law. People ex rel. Devoe v. Kelly, 2 N. Y. Cr., 430; 32 Hun, 538. He should appeal and have his sentence corrected, if it is erroneous. Id. Where the commitment shows upon its face that it was issued to enforce a judgment which the court not only had no power to render, but was ac tually prohibited from rendering, the defendant will not be obliged to appeal, but may be released on habeas corpus. People ex rel. Knowlton v. Sadler, 2 N. Y. Cr. 440. There is an obvious distinction between this and the case of People ex rel. Devoe v. Kelly, id., 428. Before amendment of 1884.-Before the amendment of 1884, it was held that no appeal from a judgment rendered by a police justice would lie to the court of sessions. People v. Trumble, 1 N. Y. Cr., 443. The holding, in Matter of Killoran v. Barton, 26 Hun, 650, that this section applied only to criminal actions, was made under the original section as it stood prior to the amendment. So, it was held that this section did not abolish writs of error and certiorari as to special proceedings of a criminal nature, only as to criminal actions. People ex rel. Fuller v. Carney, 1 N. Y. Cr., 270. The case of People ex rel. Scherer v. Walsh, 33 Hun, 345; 2 N. Y. Cr., 326; 67 How., 484, was decided in September, 1884, but it does not appear that the attention of the court was called to the amendment of that year to this section. Before the amendment of 1884 to this section, certiorari was the proper mode of reviewing the decision of a magistrate in a proceeding against a disorderly person for abandoning his wife, under section 899 of this Code. People ex rel. Sherrer v. Walsh, 67 How., 484. Whether an appeal is proper from an order punishing a disobedience of an order of a criminal court in a criminal action, was deemed questionable in People ex rel. Negus v. Dwyer, 90 N. Y., 402. But this case was decided prior to the amendment of 1884. The case of People v. Burleigh, 1 N. Y. Cr., 447, was decided before the amendment of 1884. Amendment of 1884.-The amendment of 1884 to this section gave the right of appeal in special proceedings of a criminal nature. Matter of Tillotson v. Smith, 12 St. Rep., 332. The amendment of 1884 extended the provisions of this section to abolishing writs of error and certiorari in special proceedings of a criminal nature. People ex rel. Guenther v. Murray, 41 St. Rep., 301; 62 Hun, 30; 16 N. Y. Supp., 325. Since the amendment of 1884 to this section, an appeal is the proper and the only method by which special proceedings of a criminal nature can be reviewed. People ex rel. Vítan v. Vitan, 20 Abb. N. C., 303; 8 N. Y. Cr., 25; 10 N. Y. Supp., 910; People ex rel. Wright v. Ontario Co. Sessions, 9 St. Rep., 607; 45 Hun, 54. By the amendment made to this section, and section 749, post, it was the intention of the legislature to give a right of appeal from the lower criminal court directly to the courts of sessions of the county. People ex rel. Com'rs, etc., v. Glaze, 48 St. Rep., 811 ; 65 Hun, 560; 20 N. Y. Supp., 577. Since the amendment of 1884 to the section, orders of the general sessions, made in bastardy proceedings, can be reviewed only on an appeal. People ex rel. Wright v. Court, etc., 9 St. Rep., 607; 45 Hun, 55. The conviction of a prisoner as a disorderly person before a committing magistrate cannot be reviewed by certiorari; the remedy in such case is by appeal. People ex rel. Guenther v. Murray, 41 St. Rep., 301; 62 Hun, 30; 16 N. Y. Supp., 325. See People v. Havens, 3 N. Y. Cr., 287; 21 W. Dig., 364. § 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. Appeals in case of death penalty, direct to court of appeals. 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. Amended by chap. 493 of 1887. This amendment introduced into the original section the words "except that when the judgment is of death, the appeal must be taken direct to the court of appeals." The case of People v. Bork, 31 Hun, 360; 2 N. Y. Cr., 78, was reversed in 96 N. Y., 188; 2 N. Y. Cr., 177. Appeal. This section declares in what cases appeals may be taken by the defendant in criminal cases. People v. Hovey, 30 Hun, 357; 1 N. Y. Cr., 331. This section prescribes in what cases an appeal may be taken to the general term of the Supreme Court from a judginent on conviction after indictment. People v. Havens, 3 N. Y. Cr.. 287; 21 W. Dig., 368. This section only gives the right of appeal after judgment. People Bork, 1 N. Y. Cr., 393. No review can be had after conviction and before sentence. Id. The appeal is to be heard upon the judgment roll. People v. Petmecky, 2 N. Y. Cr., 458. An appeal, under this section, need not be from a judgment which has been entered after the denial of a motion in arrest of judgment, or after the refusal to grant a new trial. People v. Joyce, 4 N. Y. Cr., 348. It is only required to be from a judgment on a conviction after indictment. Id. This section does not limit the right to review to cases only, where a jury has actually rendered a verdict. Id. The appellate jurisdiction of the supreme court in criminal cases is altogether statutory, and not a part of the inherent general jurisdiction of this court. People v. Lyons, 17 St. Rep., 769; 6 N. Y. Cr., 137. Intermediate order.-To authorize a review of intermediate orders and proceedings in connection with an appeal from the judgment, they must be embodied in the judgment-roll. People v. Trezza, 40 St. Rep., 482; 128 N. Y., 532. See 12 N. Y. Supp., 513. This section does not authorize an appeal in piecemeal, first from a judg ment and, after it is affirmed, from any subsequent order by a separate and independent appeal. Ostrander v. People, 29 Hun, 513, 519. Upon an appeal from the judgment, the court may review an interme diate order or proceeding, forming a part of the judgment-roll. People t. Joyce, 4 N. Y. Cr., 344, 348; People v. Osterhout, 34 Hun, 262. On an appeal from a judgment of conviction, entered upon a plea of guilty, the court may review an order denying defendant's motion to withdraw such plea and substitute therefor the plea of not guilty. People v. Joyce, 4 N. Y. Cr., 341. An order denying a motion in arrest of judgment is an intermediate order within the provisions of this section, from which an appeal can be taken. People v. Bork, 1 N. Y. Cr., 395. A defendant cannot maintain an appeal solely from the order denying his motion to dismiss an indictment under section 313, ante. People v. Havens, 3 N. Y. Cr., 287; 21 W. Dig., 365. Consent does not confer jurisdiction to hear an appeal. Id.; People & Beman, 22 Hun, 283. An appeal from the judgment, upon a criminal trial, brings up for review the denial of a motion for a new trial or in arrest of judgment. People v. Noonan, 38 St. Rep., 857. The specification, in the notice of appeal, of the order denying the defendant's motion for a new trial is unnecessary. People v. Schad, 35 St. Rep., 148; 58 Hun, 572; 12 N. Y. Supp., 695. This section provides that, upon an appeal from the judgment, the decision of the court on a motion for a new trial may be reviewed. Id. 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. People v. Havens, 3 N. Y. Cr., 287; 21 W. Dig., 365. An appeal, by the defendant, from the judgment brings before the general term for review the decision of a motion for a new trial, as well as the proceeding upon the trial. People v. Mangano, 29 Hun, 263. It was held, in People v. Petmecky, 2 N. Y., 450, that, where a juror in a criminal case, after an examination as to his fitness, is peremptorily challenged and does not sit, the question whether there was error in said examination is not brought up by an appeal from the judgment. But this point was overruled by People v. McQuade, 18 St. Rep., 288; 6 N. Y. Cr., 34; 110 N. Y., 284; 21 Abb. N. Č., 418. Demurrer.-An appeal from a judgment of the court of sessions, in a case sent there for trial, brings up for review the decision of the oyer and terminer overruling a demurrer to the indictment. People v. Callahan, 29 Hun, 582; 17 W. Dig., 192. A decision, overruling a demurrer interposed to an indictment and directing judgment for the people, cannot be reviewed before a judgment has been entered on the decision; People v. Beman, 22 Hun, 283; even though the counsel for both parties agree that it may be so reviewed. Id. No mode seems to be provided for an appeal by the defendant from a decision adverse to him upon a demurrer to the indictment, except under this section. People v. Callahan, 29 Hun, 580; 17 W. Dig., 192. Proceedings in judgment-roll.-This section gives to the defendant an appeal from the judgment, including the proceedings forming part of the roll. People v. Beckwith, 3 St. Rep., 759; 42 Hun, 368; 5 N. Y. Cr., 234. The Code has made no statutory provision for an appeal from an order denying a motion for a new trial in any case where the motion is made after final judgment in the action, unless the affidavits and order are embodied in the judgment-roll. People v. Hovey, 30 Hun, 357; 1 N. Y. Cr., 331. But provision is made for the review of motions for a new trial when they are embraced in the judgment-roll as provided by section 485, ante. Id. A decision of a challenge to a juror, who participated in the verdict, may be reviewed on exceptions as of course. People v. McQuade, 18 St. Rep., 288; 21 Abb. N. C., 448; 110 N. Y., 284; 6 N. Y. Cr., 34. But, if the defendant desires a review of his exceptions where the challenges are sustained, he must incorporate them in a bill of exceptions, to be settled and annexed to the roll. Id. There is no statute authorizing an appeal from an order denying a new trial made after the roll is made up and the final affirmance of the judgment. People v. Trezza, 40 St. Rep., 482; 128 N. Y., 533; 8 N. Y. Cr., 295. Death judgment.-When the judgment is of death, the appeal must be taken direct to the court of appeals. People v. Lyons, 17 St. Rep., 766; 6 N. Y. Cr., 137; 2 N Y. Supp., 606. The amendment of 1887 to this section, allowing a direct appeal to the court of appeals in capital cases, is constitutional. Id. The amendment of 1887 to this section provided that, when the judgment is of death, the appeal must be taken directly to the court of appeals. People v. Trezza, 40 St. Rep., 482; 128 N. Y., 532. This court is, in such case, authorized to review any intermediate order or proceeding forming part of the judgment-roll, the same as the supreme court was authorized to do by the original section. Id. When appeal does not lie.-The Code has not provided for any review of the order setting aside, or refusing to set aside, an indictment. People v. Petrea, 30 Hun, 102. No appeal lies, it seems, from an order denying a motion to set aside a judgment, etc., made at oyer and terminer, when the defendant appears for the purpose of having a day fixed for the execution of the sentence, after an appeal from the judgment of conviction and affirmance by the general term. Ostrander v. People, 29 Hun, 513; 1 N. Y. Cr.. 283; 17 W. Dig., 375. In People v. Petmecky, 2 N. Y. Cr., 450, it was held that, where a juror in a criminal case, after an examination as to his fitness, is peremptorily challenged and does not sit, the question whether there was error in said examination is not brought up by an appeal from the judgment. An appeal from a judgment of conviction on the ground that the court, which passed the sentence, was improperly constituted, does not lie, when no such objection or exception was taken by the defendant at the time of such sentence, provided an opportunity to do so was given. People v. Bork, 1 N. Y. Cr., 393. After an affirmance of the judgment upon a writ of error or appeal to review the conviction of murder, no appeal lies from an order denying an application to vacate and annul the trial, conviction and all subsequent proceedings. Ostrander v. People, 29 Hun, 513, 519. No appeal lies, under this section, to the general term to review a judgment of the county court, dismissing an appeal from a judgment for costs, rendered by the special sessions against a complainant in a prosecution for petit larceny. People v. Carr, 28 St. Rep., 287; 54 Hun, 444. No appeal will lie before the filing of a judgment-roll on conviction under section 485, ante, from an order denying a motion to set aside an indictment under subd. 2 of section 313, ante. People v. Havens, 3 N. Y. Cr., 286. Even though both parties consent to the hearing of such appeal. Id. See People v. Loppy, 40 St. Rep., 410; 128 N. Y., 629; People v. Wilson, 15 St. Rep., 503; 109 id., 349; People v. Noonan, 14 N. Y. Supp., 521. § 518. 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. Amended by chap. 360 of 1882. This amendment changed the word "to" in subd. 2 of the original to the word "of," in the present section. Appeal by people.-Formerly the people had no power to review an adverse decision. People v. Dempsey, 2 N. Y. Cr., 121; 31 Hun, 528; 66 How., 376; People v. Corning, 2 N. Y., 9; People v. Comstock, 8 Wend., 549. In 1852, the people were given the right to review a judgment in favor of any defendant, except in case of acquittal by a jury. People v. Dempsey, ante. In 1879 and 1880, such right of review was further extended in favor of the people. Id. But a writ of error at common law would not lie on behalf of the people after a judgment of acquittal. Id.; People v. Corning, ante; People v. Bork, 78 N. Y., 346; nor from an order quashing an indictment. People v. Dempsey, ante; People v. Stone, 9 Wend., 191. The right of the people to take an appeal in a criminal case is wholly dependent upon the statute. People v. Snyder, 7 St. Rep., 842; 44 Hun, 193. This section declares in what cases the people may appeal. People v. Beckwith, 3 St. Rep., 759; 42 Hun, 367; 5 N. Y. Cr., 233. But two cases are specified, and both are questions of law. Id. In no other than the two cases specified in this section, has the right of the people to appeal been given. People v. Dempsey, 31 Hun, 528; 66 How. 376; 2 N. Y. Cr., 121. People v. Snyder, 7 St. Rep., 842; 44 Hun, 193. Subd. 1.-An appeal to the general term may be taken by the people from a judgment for the defendant on a demurrer to the indictment. People v. Callahan, 29 Hun, 581; 17 W. Dig., 192. No appeal.-No appeal lies by the people from an order of the oyer and terminer setting aside a panel of grand jurors, discharging them from service and quashing an indictment found by them. People v. Dempsey, 31 Hun, 527; 66 How., 376; 2 N. Y. Cr., 121. The people cannot appeal from an order granting a new trial to a defendant, after his conviction, upon the ground of newly discovered evidence. People v. Beckwith, 3 St. Rep., 759; 42 Hun, 367; 5 N. Y. Cr., 233. Subd. 2.-The second subdivision of this section refers solely to motions in arrest of judgment. Id. be § 519. Appeal to the court of appeals.-An appeal may 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: |