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.

Am'd, ch. 427 of 1897.

Am'd by chap. 880 of 1895. In effect January 1, 1896.

Amended by chap. 360 of 1882.

This amendment added to original section the provision as to stay in case of death penalty.

Amended by chap. 493 of 1887.

This amendment added to the section, as amended in 1882, the provision empowering the court of appeals to order new trial in absence of exception. See notes under the preceding section.

See note on the extent of review by the court of appeals under section 528 of the Criminal Code, in 2 Silv. (Ct. App.), 240.

The case of People v. Dimick, 3 St. Rep., 398; 41 Hun, 621; 5 N. Y. Cr., 187, was reversed in 11 St. Rep., 739; 107 N. Y., 13.

Stay.-An appeal to the court of appeals from a judgment of the general term affirming a conviction of murder stays only the execution and not the confinement. People ex rel. Trezza v. Brush, 39 St. Rep., 878; 60 Hun, 401 ; 8 N. Y. Cr., 293; 15 N. Y. Supp., 512, 513.

An appeal to the court of appeals from a conviction in a capital case, stays the judgment of death only, and not that part of the judgment providing for the custody of the defendant, between his removal to the state prison and his execution. People v. Trezza, 40 St. Rep., 484; 128 N. Y., 536; 8 N. Y. Cr., 299; 4 Silv. (Ct. App.), 357.

An appeal to the court of appeals from a judgment of the general term, sentencing a defendant for murder in the first degree, operates only as a stay of execution of the death penalty, and not of the confinement of the defendant in the penitentiary pending the appeal. McElvaine v. Brush, 8 N. Y. Cr., 305.

Effect of amendment of 1887.-This provision has very much enlarged the jurisdiction and the labors of the court of appeals and requires it to review the facts in every capital case, and to determine whether, upon all the evidence, there is, in its opinion, good and sufficient reason for setting aside the verdict of the jury and granting a new trial. People v. Driscoll, 12 St. Rep., 253; 107 N. Y., 417.

This section vests the court of appeals with power, in its discretion, to disregard the neglect or omission of the accused to take the customary objections and exceptions on a trial, and grant a new trial when such a course will be in furtherance of justice and conduce to the humane administration of the law. Id.

This discretionary power arises when, upon an examination of the whole case, it appears affirmatively that injustice has been done to the defendant in the result arrived at by the trial court. Id. The general rule seems to be to leave it discretionary with appellate courts, whether they will give effect to claims of error or illegality in particular cases, when the error is not pointed out on the trial and objections and exceptions taken thereto in the usual manner. Id.

Application. This section refers exclusively to the court of appeals. People v. Hovey, 92 N. Y., 557 ; 1 N. Y. Cr., 285.

This section applies to an appeal to the courts of appeals taken after, though the appeal to the general term was taken before, the enactment of the amendment of 1887. People v. Van Brunt, 13 St. Rep., 670; 108 N. Y., 657; 1 Silv. (Ct. App.), 587; 8 N. Y. Cr., 229.

This section declares in what cases the certificate specified should be granted, and places the granting thereof upon the opinion of the officer, to whom application is made, that reasonable doubt exists whether the judgment should stand. People v. Bragle, 10 Abb. N. C., 301.

The court of appeals has no jurisdiction to grant a new trial in any case, save where the judgment is of death, unless exceptions, which present questions of law, appear in the record. People v. Brooks, 43 St. Rep., 298; 131 N. Y., 329.

Before the amendment of 1887 to this section, the court of appeals had no power to review the case upon the facts of a criminal trial in the absence of exceptions. People v. Hovey, 92 N. Y., 557; 1 N. Y. Cr., 285.

The jurisdiction of the court of appeals to review directly a judgment of

* See § 830, post.

conviction of murder in the first degree rests upon this section, as amended by chap. 493 of 1887. People v. Wood, 36 St. Rep., 952; 126 N. Y., 253. Errors on exception.-Errors upon criminal trials can be made available in the court of appeals by exception duly taken on the trial. People v. Guidici, 100 N. Y., 503; 5 N. Y. Cr., 557; People v. Hovey, 92 N. Y., 554; 1 N. Y. Cr., 283; People v. Boas, 92 N. Y., 560; 1 N. Y. Cr., 287; People v. D'Argencour, 95 N. Y., 631; 2 N. Y. Cr., 267; People v. Thompson, 41 N. Y., 6; People v. Casey, 72 id., 399; Connors v. People, 50 id., 240; Brotherton v. People, 75 id., 159.

Where the general term has affirmed a conviction of murder, the only questions cognizable in the courts of appeals are those arising upon exceptions taken in the course of the proceedings. People v. Druse, 3 St. Rep., 617; 1 Silv. (Ct. App.), 182; 103 Ñ. Y. 655; 5 N. Y. Cr., 24.

Under section 517, ante, the appeal by the defendant, where the judgment is of death, must be taken direct to the court of appeals. In consequence of this provision, there can be no appeal from a judgment of the general term affirming or reversing a judgment of conviction, under subd. I of section 519, ante; and no question can arise in respect to the power of the court of appeals, upon such an appeal, under the last provision of this section. The people cannot take an appeal from such a judgment of the general term, as it is precluded from so doing in any case by the provisions of section 518, ante.

Exercised under settled rules.-The authority conferred by this section, is to be exercised under the restraint of settled rules. People v. Tice, 43 St. Rep., 576; 131 N. Y., 654; 4 Silv. (Ct. App.), 102.

This section does not confer upon the court of appeals power arbitrarily to grant a new trial whenever it thinks that justice requires it. Its jurisdiction in such case is to be exercised according to settled rules of law. People v. Fish, 34 St. Rep., 842; 125 N. Y., 136; 8 N. Y. Cr., 134. The determination of the jury should not be interfered with, unless the court can see that it is against the clear weight of the evidence or was influenced in some way by passion, prejudice, mistake, perversion or corruption. Id.

These provisions do not excuse the accused party from complying with the settled rules of practice applicable to the trial of criminal cases, or exempt him from the duty of presenting the usual and ordinary questions, arising on the trial of a case, in the form and manner previously pursued in the trial of indictments. People v. Driscoll, 12 St. Rep., 253; 107 N. Y., 417. In reviewing the various incidental questions arising during the progress of the trial, and the exceptions taken to the admission or exclusion of evidence, or to the instructions of the court, regard must still be had to the established rules of law regulating such proceedings. Id. The omission to make the proper objections and take exceptions to alleged erroneous proceedings deprives the defendant of the privilege of claiming, as matter of right, in the court of appeals, the benefit of errors occurring on the trial, and remits him to an appeal to the decretionary powers of the appellate court. Id.

The authority of the court of appeals must be exercised under the restraint of settled rules, and in accordance with established principles of law regulating and defining the duties of appellate tribunals in reviewing the judgments of trial courts. People v. Kelly, 22 St. Rep., 969; 2 Silv. (Ct. App.), 231; 113 N. Y., 648; 7 N. Y. Cr., 40.

Review of facts.-This section simply invests the court of appeals with the jurisdiction formerly possessed by the supreme court to grant new trials on the merits. People v. Cignarale, 16 St. Rep., 155; 110 N. Y.,

26.

In exercising the jurisdiction conferred by this section in capital cases, the court of appeals is governed by the practice regulating the review of questions of fact upon appeal to the supreme court. People v. Taylor, 52 St. Rep., 918; 138 N. Y., 405; People v. Loppy, 128 N. Y., 629; 40 St. Rep., 410; People v. Trezza, 125 N. Y., 740; 36 St. Rep., 149; People v. Fish, 125 N. Y., 136; 34 St. Rep., 840; People v. Stone, 117 N. Y., 480; 27 St. Rep., 823. In such cases, if there is a fair conflict in the evidence, or it is such that different inferences can be properly drawn from it, the determination of the jury will not be interfered with, unless it is clearly against the weight of evidence, or appears to have been influenced by passion, prejudice, mistake or corruption. Id. Even if in the judgment of the court

of appeals, there is a rational doubt of the guilt of the defendant, it will not be a sufficient ground for reversal. Id.

The powers conferred by this section upon the court of appeals are similar to those formerly given to this court in certain cases by chap. 337 of 1855, as amended by chap. 330 of 1858, and to the supreme court by the preceding section. People v. Driscoll, 12 St. Rep., 253; 107 N. Y., 417.

The court of appeals will be governed by the practice regulating appeals to the general term in dealing with questions of fact. People v. Loppy, 40 St. Rep., 410; 128 N. Y., 629; 8 N. Y. Cr., 321. it will regard the findings of the jury on disputed and conflicting evidence as conclusive, unless there are circumstances indicating some partiality, mistake, error or prejudice on their part.

Id.

The court of appeals will not interfere with the verdict of a jury where it is supported by sufficient evidence, unless it reaches the conclusion, on the whole case, that injustice has been done, or that there is a strong probability that injustice has been done in the disposition made of the case by the jury. People v. Tice, 43 St. Rep., 576; 131 N. Y., 656; 4 Silv. (Ct. App.),

102.

The court must be able, upon a review of the proceedings, to reach the conclusion that injustice has probably been done on the trial, before it is justified in setting aside the verdict of the jury. People v. Cignarale, 16 St. Rep., 155; 110 N. Y., 27.

The mere fact that there is a conflict in the evidence is not alone a ground for a new trial.

Id.

In case of serious doubt whether the fact was properly found by the jury, the court of appeals may, if in its opinion justice requires it, order a new trial. Id.

The amendment of 1887 to this section does not authorize the court of appeals to interfere with the finding of the jury when supported by sufficient evidence, unless it appears from the whole record that injustice has been done. People v. Trezza, 36 St. Rep., 149; 125 N. Y., 740; 8 N. Y. Cr., 284; 4 Silv. (Ct. App.), 357; People v. Cignarale, 16 St. Rep., 155; 110 N. Y., 23; People v. Kelly, 22 St. Rep., 969; 113 N. Y., 647; 2 Silv. (Ct. App.), 231; 7 N. Y. Cr., 40.

The provision of this section does not authorize a review of the findings of fact of a jury, founded on sufficient evidence, or a reversal simply because of a difference of opinion on the facts between the court and the jury. People v. Kelly, 22 St. Rep., 969; 113 N. Y., 648; 2 Silv. (Ct. App.), 233; People v. Stone, 27 St. Rep., 823; 117 N. Y., 483; People v. Cignarale, 16 St. Rep., 155; 110 N. Y., 23.

It simply invests the court with power to order a new trial where, upon a consideration of the whole case, it is manifest that injustice has been done, though the question has not been properly raised by exceptions. Id.

The duty is imposed upon the court of appeals in capital cases, to order a new trial, whether any exception shall have been taken or not in the court below, if considerations of justice, based upon the presence in the record of errors prejudicial to the substantial rights of the accused demand it. People v. Pallister, 51 St. Rep., 725.

It is not the province of the court of appeals, under this section, to determine controverted questions of fact arising upon conflicting evidence; it may not lawfully usurp the appropriate functions of the jury. People v. Stone, 27 St. Rep., 823; 117 N. Y., 483.

In deciding whether a new trial should be granted under this section, the court of appeals cannot review and determine controverted questions of fact arising upon conflicting evidence. People v. Wayman, 38 St. Rep., 747; 3 Silv. (Ct. App.), 491; 128 N. Y., 586.

When granted. The case requires the same examination on appeal, in a capital case, as though all the objections and exceptions ordinarily used to present the effect of the evidence for review were taken upon the trial. People v. Majone, 91 N. Y., 211; 12 Abb. N. C., 187.

The court of appeals, it seems, will, if it is made to appear that there has been a former acquittal in a capital case, take notice of the fact, though not presented by formal plea. People v. Cignarale, 16 St. Rep., 155;110 N. Y.,

Where the record discloses upon its face that the court had no jurisdic

tion, or that the constitutional method of trial by jury was disregarded, or some other defect in the proceedings which could not be waived or cured and is fundamental, it would be the duty of an appellate tribunal to reverse the proceedings and conviction, though the question had not been formally raised in the court below, and was not presented by any ruling or exception on the trial. People v. Bradner, 10 St. Rep., 667; 107 Ñ. Y., 4.

Where the court of appeals can see that the defendant has been prejudiced by intemperate remarks of the district attorney, it has power, under this section, to order a new trial. People v. Greenwall, 26 St. Rep., 230; 7 N. Y. Cr., 314; 115 N. Y., 527.

Under the provisions of this section, the defendant cannot claim, as matter of right, the benefit of error, occurring on the trial, where no proper objection was made and no exception. People v. Lyons, 16 St. Rep.. 660. 110 N. Y., 619; 2 Silv. (Ct. App.), 60. He can only ask the court to determine, on the whole case, the question as to whether justice requires a new trial or not, or whether the verdict was against the weight of evidence or against law. Id.

It was held by the court of appeals, after a review of the facts as well as the law, that the verdict, in this case, was not against the weight of evidence, or against law, and that justice did not require that a new trial should be had. People v. Hamilton, 50 St. Rep., 22.

To justify a consideration of an appeal to the court of appeals, the order must show affirmatively that the general term has exercised its discretion in refusing a new trial on the ground that the verdict was against the weight of evidence, and has granted it solely for error of law. People v. Boas, 92 N. Y., 564; 1 N. Y. Cr., 290.

See People v. Wilson, 15 St. Rep., 503; 109 N. Y., 349; People ex rel. Trezza v. Brush, 39 St. Rep., 878.

$529. Certificates of stay not to be granted except on notice to the district attorney.-The certificate mentioned in the last two sections can not, however, be granted upon an appeal on a conviction of felony until such notice as the judge may prescribe has been given to the district attorney of the county where the conviction was had, of the application for the certificate, accom panied by a formal specification in writing of the grounds upon which the application is based, but the judge may stay the execution of the judgment until the determination of such application. When an application for such certificate shall have been made to and denied by the trial judge or a justice of the supreme court or in case of an appeal to the court of appeals, by a fuge of that court or a justice of the appellate division of the supreme court, no other application for such certificate shall be made. If an appeal to the appellate division of the supreme court shall not be brought on for argument by the defendant at the next term of the appellate division begun not less than ten days after the granting of such certificate, or if an appeal to the court of appeals shall not be brought on for argument by the defendant when the court of appeals shall have been in actual session for fifteen days after the granting of such certificate, the district attorney on two days' notice to the defendant may apply to the judge or justice who granted the certificate, or to any judge or justice of the court in which the appeal is pending, for an order vacating the certificate, and upon the entry of such an order the judgment shall be executed as though a certificate had never been granted to the defendant.

Am'd, ch. 427 of 1897.

Am'd by chap. 880 of 1895. In effect January 1, 1896.

See notes under last section.

See notes under section 524, ante.

See People v. Wentworth, 3 N. Y. Cr. 111.

$530. Effect of the stay.-If the certificate, provided in sections 527 and 528, be given, the sheriff must, if the defendant be in his custody, upon being served with a copy of the order, keep the defendant in his custody, without executing the judgment, and detain him to abide the judgment upon the appeal.

§ 531. Effect of stay.-If, before the granting of the certificate, the execution of the judgment have commenced, the further execution thereof is suspended, and the defendant must be restored by the officer in whose custody he is, to his original custody.

§ 532. Transmitting the papers to the appellate court.—Upon the appeal being taken, the clerk, with whom the notice of appeal is filed, must, within ten days thereafter, without charge,

*See § 830, post.

transmit a copy of the notice of appeal and of the judgment-roll, as follows:

1. If the appeal be to the appellate division of the supreme court, to the clerk of the department where the appeal is to be heard ;

2. If it be to the court of appeals, to the clerk of that court. Am'd by chap. 880 of 1895. In effect July 1, 1896. See Court of Appeals rule, 3.

CHAPTER II.

DISMISSING AN APPEAL, FOR IRREGULARITY. SECTION 533. For what irregularity, and how dismissed. 534. Dismissal for want of return.

§ 533. For what irregularity, and how dismissed.-If the appeal be ir regular in a substantial particular, but not otherwise, the court may, on any day in term, on motion of the respondent, upon five days' notice, served with copies of the papers on which the motion is founded, order it to be dismissed. 534.* Dismissal for want of return.-The court may also, upon like motion, dismiss the appeal,

1. If the return be not made, as provided in section five hundred and thirtytwo, unless for good cause, the time to make such return be enlarged.

2. If the appeal be not brought on for argument by the appellant as promptly after the return has been made as the circumstances of the case will reasonably admit.

Am'd, ch. 427 of 1897.

Where a motion to dismiss an appeal in a criminal case for want of pros ecution has been denied upon appellants giving a stipulation that it may be dismissed if he is not ready for argument at the following term, a similar motion made at such term will be granted though he makes affidavit that he has been unable to procure the stenographer's notes in time to comply with his stipulation. People v. Wilson, 50 St. Rep., 419; 21 N. Y. Supp.,

571.

CHAPTER III.

ARGUMENT OF THE APPEAL.

SECTION 535. Appeal to the appellate division, how and where brought to ar

gument.

536. Appeal to court of appeals. how brought to argument.

537. Notice of argument to counsel for defendant.

538. Papers on appeal, by whom furnished, and effect of omission. 539. Judgment of affirmance may be without argument, if appellant fail to appear. Reversal, onty upon argument, though respondent fail to appear.

540. Number of counsel to be head. Defendant's counsel to close the argument.

541.

Defendant nced not be present.

§ 535. Appeal to the appellate division; how and where brought to argument.-An appeal to the appellate division of the supreme court may be brought to argument by either party, on ten days' notice, on any day, at a term, held in the department in which the original judgment was given.

Am'd by chap. 880 of 1885. In effect January 1, 1896.

Am'd by chap. 384 of 1884.

This amendment substituted the word "department " for " district." Appeals in a criminal action may be heard on any day in the term. Sup. Ct. rules, 43.

They are entitled to a preference. Section 790 of Code of Civil Proce dure.