§ 536. Appeal to court of appeals, how brought to argument.— An appeal to the court of appeals may, in the same manner, be brought to argument by either party, on any day in term. § 537. Notice of argument to counsel for defendant.—If a counsel, within five days after the appeal, have given notice to the district attorney, that he appears for the defendant, notice of argument must be served on him, instead of the defendant; otherwise, notice must be served as the court may direct. § 538. Papers upon appeal, by whom furnished, and effect of omission.-When the appeal is called for argument, the appellant must furnished the court with copies of the notice of appeal and judgment-roll, except where the judgment is of death. If he fail so to do, the appeal must be dismissed, unless the court otherwise direct. Amended by chap. 493 of 1887. § 539. Judgment of affirmance may be wthout argument, if appellant fail to appear. Reversal, only upon argument, though respondent fail to appear.-Judgment of affirmance may be given, without argument, if the appellant fail to appear. But judgment of reversal can only be given upon argument, though the respondent fail to appear. See Sup. Ct. rule, 15. A judgment of reversal can only be given upon argument which satisfies the appellate court that the judgment appealed from should be reversed, even though the district attorney fails to appear in the case. People v. Bradner, 7 St. Rep., 846; 44 Hun, 235. § 540. Number of counsel to be heard. Defendant's counsel to close the argument.-Upon the argument of the appeal, if the crime be punishable with death, two counsel on each side must be heard if they require it. In any other case, the court may, in its discretion, restrict the argument to one counsel on each side. The counsel for the defendant is entitled to the closing argument. 541. Defendant need not be present.-The defendant need not personally appear in the appellate court. An escaped prisoner can take no action before the court. People v. Genet, 59 N. Y. 80; Matter of O'Byrne, 29 St. Rep., 116; 55 Hun, 438. CHAPTER IV. JUDGMENT, UPON APPEAL. SECTION 542. Court to give judgment, without regard to technical errors, defects or exceptions, not affecting substantial rights. 543. May reverse, affirm or modify the judgment, and order a new trial. 544. New trial. 545. Defendant to be discharged on reversal of judgment against him, where new trial is not ordered, 546. Judgment of affirmance, how to be carried into effect. SECTION 548. Papers returned to be remitted. 549. Jurisdiction of appellate court ceases, after judgment remitted. § 542. Court to give judgment without regard to technical errors, defects or exceptions, not affecting substantial rights.After hearing the appeal the court must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties. See section 285, ante; section 648, post. See notes under section 764 of the Code of Criminal Procedure. The case of People v. Sharp, 10 St. Rep., 522; 45 Hun, 499, 518, was reversed in 12 St. Rep., 217; 107 N. Y., 427. The case of People v. Richards, 7 St. Rep., 656; 44 Hun, 288; 5 N. Y. Cr., 371, was reversed in 13 St. Rep., 515; 108 N. Y., 137. 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. See People ex rel. Bork v. Gilbert, 1 N. Y. Cr., 398; reversed. Duty of court.-It is the duty of an appellate court, in a criminal action, to give with reason and discretion, full force and effect to the provisions of this section. People v. Dimick, 11 St. Rep., 739; 107 N. Y., 18, 34. The general term does not, on appeal, regard technical errors, defects or exceptions which do not affect substantial rights. People v. Osterhout, 34 Hun, 261; 3 N. Y. Cr., 445; 20 W. Dig., 294. The requirement of this section is to be reasonably and fairly applied. People v. McQuade, 18 St. Rep., 288; 21 Abb. N. C., 436; 110 N. Y., 284; 6 N. Y. Cr., 36; 1 N. Y. Supp., 160. The court is no longer required to reverse a conviction because a mere technical error is disclosed by the record. Id. But every statutory provision intended for the benefit of the accused confers a substantial right, which cannot be disregarded without his consent. Id. Technical errors, etc.-Mere technical errors, not affecting the substantial rights of the defendant, are required to be disregarded by this section. People v. Meyers, 7 St. Rep., 221; 5 N. Y. Cr., 125. Under this section, technical errors or defects, or exceptions, not affect ing the substantial rights of the parties, will be disregarded in giving judgment on appeal. Millett v. People, 27 Hun, 469, 471. By this section, appeals are required to be determined without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. People v. Kelly, 31 Hun, 226; 2 N. Y. Cr., 21. An irregularity, which does not prejudice the substantial rights of the defendant, will not invalidate the verdict. People v. Menken, 36 Hun, 91; 3 N. Y. Cr., 243. In view of this section, an error, to call for the reversal of a judgment, must prejudice the rights of the defendant. People v. Wentworth, 4 N. Y. Cr., 214. A mere technical error in the reception or exclusion of evidence which does not violate a substantial right of, or withhold a substantial benefit from, the defendant, must be disregarded on appeal. People v. Sharp, 5 N. Y. Cr., 388. A new trial ought not to be granted where an exception is well taken, unless the jury can draw from evidence admitted under it some unfavorable inference, nor when the party excepting has, by his own course of examination, destroyed the force of his objection. People v. Buddensieck, 3 St. Rep., 664; 103 N. Y., 500; S. C., 4 N. Y. Cr., 262. 66 The charge of the judge, which is a mere impertinence, or an abstract opinion out of the case," induced by the defendant's assertion, but founded on no evidence, and which cannot, in any reasonable view, work prejudice to the defendant, is, even though technically erroneous, no ground for a new trial. People v. Johnson, 5 St. Rep., 608; 104 N. Y., 213; 5 N. Y. Cr., 219. Where no errors, that were prejudicial to the defendant, are found, the judgment and order should be affirmed. People v. Brooks, 39 St. Rep., 832; aff'd, 43 id., 294; 131 N. Y., 327. A new trial will not be granted, even in a criminal case, for an erroneous ruling of the court upon some legal proposition, where the appellate tribunal can see that, by no possibility, could the error have worked any harm to defendant. People v. Wood, 36 St. Rep., 954; 126 N. Y., 254. Where it is not apparent that any substantial right of the defendant is affected, a new trial will not be granted. People v. Sweeney, 36 St. Rep., 77; 13 N. Y. Supp., 25. The admission of erroneous evidence must be disregarded on appeal, under this section, when the fact, sought to be proved by it, conclusively appears by the uncontradicted testimony of other witnesses. People v. Burns, 2 N. Y. Cr., 427. The rule, laid down in this section, was applied in People v. Brooks, 43 St. Rep., 297; 131 N. Y., 327, to a case where the defendant was not harmed by the exclusion of further testimony from him on a particular subject. The admission of incompetent, but wholly immaterial, testimony furnishes, in view of this section, no ground for a new trial. People v. Fanning, 43 St. Rep., 775; 4 Silv. (Ct. App.), 135; 131 N. Y., 664; 8 N. Y. Cr., 369. Where the prosecution does more than it is obliged to do to secure the conviction of the defendant, he, if he is not injured by such action, is not entitled by reason of the provisions of this section, to complain of it. People v. Connor, 25 St. Rep., 141; 53 Hun, 352; 6 N. Y. Supp., 222. The refusal of the court to strike out evidence, in a criminal action, which could not have influenced the verdict, furnishes no reason for a reversal of the conviction. People v. Chacon, 1 St. Rep., 386; 1 Silv. (Ct. App.), 41 ; 102 N. Y., 672; 4 N. Y. Ĉr., 173. Error in requiring defendant, on his cross-examination, to answer questions, not proper nor pertinent to the issue, if it is not productive of any injurious effect, forms no ground for the reversal of the judgment. People v. Irving, 2 N. Y. Cr., 51; 31 Hun, 616. Where the erroneous admission of evidence had no important effect upon the result of the trial, the appellate court may, under the provisions of this section, decline to grant a new trial. People v. Wayman, 38 St. Rep., 754; 3 Silv. (Ct. App.), 500; 128 N. Y., 588. Where the appellate court cannot say that the admission of incompetent evidence was not prejudicial to the defendant, it cannot disregard the error under the rule enunciated in this section, and affirm the judgment. People r. Stoddard, 45 St. Rep., 916. Where the time alleged in the indictment varies from that shown by the proof, and this variance was not called to the attention of the court on the trial nor presented by exception, it is not available on appeal. People v. Formoso, 43 St. Rep., 655; 131 N. Y., 481. A variance between the indictment and proof, in the name of the complainant, where it does not affect the substantial rights of the defendant, can be of no avail on the appeal. People v. Hagan, 37 St. Rep., 661; 14 N. Y. Supp., 233. Whether the erroneous exclusion of a single juror from the panel by mistake or inadvertence, where it can be fairly inferred that no injury resulted to the defendant, may be disregarded under this section, was not decided in People v. McQuade, 18 St. Rep., 288; 21 Abb. N. C., 449; 110 N. Y., 284; 6 N. Y. Cr., 36. Assignments of errors are to be considered and decided in view of the provisions of this section. Id. If evidence, of a kind most important and predominating, has been offered on the part of the defendant, and ruled out on the objection of the people and under the defendant's exception, such ruling is error, which demands the reversal of the judgment of conviction. People v. Wood, 36 St. Rep., 954; 126 N. Y., 254. In such case, the appellate court is not at liberty, under this section, to say that the error is merely technical, or that the substantial rights of the defendant have not been affected. Id. This is so, even though the court may be inclined to think that upon the whole case, with such evidence admitted, the defendant should have been convicted. Id. See People v. Hughes, 46 St. Rep., 465; 8 N. Y. Cr., 451; 19 N. Y. Supp., 551; People v. Brooks, 39 St. Rep., 827; 15 N. Y. Supp., 366; People t. Stoddard, 45 St. Rep., 915; 19 N. Y. Supp., 937; People v. Upton. 29 St. Rep., 777; 9 N. Y. Supp., 686; People v. Clark, 49 St. Rep., 501 ; 20 N. Y. Supp., 731; People v. Bosworth, 45 St. Rep., 520; 64 Hun, 83; People v. Lawrence, 51 St. Rep., 288; 137 N. Y., 522; People v. Kennedy, 51 St. Rep., 814; 22 N. Y. Supp., 269; People v. Hartley, 51 St. Rep., 805; 22 N. Y. Supp., 296; People v. Bradner, 10 St. Rep., 667; 107 N. Y., 12; People v. Ostrander, 45 St. Rep., 555; 64 Hun, 83; People v. Fanshawe, 47 St. Rep., 347; 65 Hun, 97; 8 N. Y. Cr., 353; People v. Webster, 52 St. Rep., 239; 22 N. Y. Supp., 640. § 543. May reverse, affirm or modify the judgment, and order a new trial and on affirmance of capital conviction fix the time for the execution of the sentence.-Upon hearing the appeal the appellate court may, in cases where an erroneous judgment has been entered upon a lawful verdict, or finding of fact, correct the judgment to conform to the judgment or finding; in all other cases they must either reverse or affirm the judgment appealed from, and in cases of reversal, may, if necessary or proper, order a new trial. If the judgment of death is affirmed, the court of appeals, by an order under its seal, signed by a majority of the judges, shall fix the week during which the original sentence of death shall be executed, and such order shall be sufficient authority to the agent and warden of any state prison for the execu tion of the prisoner at the time therein specified, and the agent and warden must execute the judgment accordingly. Am'd, ch. 427 of 1897. See notes under preceding section. See notes under section 764, post. Correction of judgment.-The primary object of the first clause of this section was to provide for cases where an illegal sentence follows a lawful conviction. People v. Bradner, 10 St. Rep., 667; 107 N. Y., 1, 12. By this section, it is made the duty of the appellate court, where an erroneous judgment has been entered upon a lawful verdict, to correct the judgment to conform to the verdict. People v. Griffin, 27 Hun, 595; 15 W. Dig., 294. There is no provision for remitting the case to the trial court. Id. Where an erroneous judgment has been entered, the appellate court may correct the judgment. People ex rel. Devoe v. Kelly, 2 Ñ. Y. Cr., 430; 32 Hun, 538. Where the conviction is unassailed, and the judgment is reversed for error in the sentence, the appellate court should remit the record to the court, in which the conviction was had, to pass such sentence as the appellate court directs. People v. Bauer, 3 N. Y. Cr., 434. The court of appeals held, in People v. Bork, 96 N. Y., 188: 2 N. Y. Cr., 177, that the appellate court was not obliged to fix the time of imprisonment, or itself to exercise a discretion. The appellate court directs the sentence when it points out the law providing for the punishment and directs the court below to sentence thereunder. The language and intent of this section fairly includes the case where, by negligence or inadvertence, the statement of the offense is omitted from the clerk's entry of judgment upon the minutes, under section 485 of the Code of Criminal Procedure. People v. Bradner, 10 St. Rep., 667; 107 N. Y., 1, 12. Disposition of appeal.-This section provides that, upon hearing the appeal, the appellate court must either reverse or affirm the judgment appealed from, and, in cases of reversal, may, if necessary or proper, order a new trial. People v. Palmer, 15 St. Rep., 78; 109 N. Y., 419. Verdict not disturbed.-Where a verdict of conviction is amply justified by the evidence and no exception has been taken therein, and the charge was full and fair, the verdict will not be disturbed. People v. Miller, 50 St. Rep., 471; 21 N. Y. Supp., 388. New trial denied.-Upon the reversal of a judgment of conviction and the order denying a motion for a new trial, on the ground that the facts proved do not constitute the offense charged in the indictment, where it is manifest that no stronger case can be made out by the people, a new trial is unnecessary and should not be ordered. People v. Camp, 51 St. Rep., 35. Remanding case.-Where, upon appeal from a judgment of conviction in a criminal action, the general term reversed the conviction and discharged the defendant on the ground of the insufficiency of the indictment, * See § 830, post. a decision of the court of appeals that the indictment was sufficient and a reversal of the judgment on that ground do not authorize an affirmance of the conviction in the latter court. People v. Lawrence, 51 St. Rep., 286; 137 N. Y., 524. The defendant has the right to a review by the general term upon the evidence, and the case should be remanded to that court for a further hearing. Id. See People v. Kellogg, 51 St. Rep., 102, 103. § 544. New trial.-When a new trial is ordered, it shall proceed in all respects as if no trial had been had. See section 462, ante. When a new trial is ordered, it shall proceed in all respects as though no trial had been had. People v. Palmer, 15 St. Rep., 78; 109 N. Y., 419. Upon a new trial, the defendant is to be tried in all respects as though he had not been tried previously. People v. Webster, 36 St. Rep., 837; 59 Hun, 402;13 N. Y. Supp., 414. See People v. Cignarale, 16 St. Rep., 155; 6 N. Y. Cr., 98. § 545. Defendant to be discharged on reversal of judgment against him, where new trial is not ordered.-If a judgment against the defendant be reversed, without ordering a new trial, the appellate court must direct, if he be in custody, that he be discharged therefrom, or if he be admitted to bail, that his bail be exonerated, or if money be deposited instead of bail, that it be refunded to the defendant. § 546. Judgment of affirmance, how to be carried into effect.— On a judgment of affirmance against the defendant, the original judgment must be carried into execution, as the appellate court may direct, and if the defendant be at large, a bench warrant may be issued for his arrest. If a judgment be corrected, the corrected judgment must be carried into execution as the appellate court may direct. Amended by chap. 360 of 1882. This amendment introduced, at the end of the first sentence of the original section, the words and if the defendant be at large, a bench warrant may be issued for his arrest." Re-sentencing.-Prior to the act of 1863 (chap. 226), there was no power in the court of appeals, on the reversal of a judgment of conviction in a criminal case for error in the sentence, either to re-sentence the prisoner, or to remit the case for re-sentence to the court below. People v. Bork, 96 N. Y., 188, 200; Ratzky v. People, 29 Id. 124. The above act was passed to remedy this defect in legislation. Id. It was continued in force, as a rule of procedure, by section 962 of the Code, in respect to actions pending when the Code of Criminal Procedure took effect, and was not repealed by the change in the mode of bringing up cases for review. People v. Bork, ante. Where a prisoner has been convicted and sentenced to capital execution on a day specified, and a stay of execution granted, and the conviction was affirmed by the general term, the latter court should sign a warrant directed to the proper officer commanding him to execute the sentence. Moett v. People, 85 N. Y., 373, 383. It is not strictly regular for such court again to pass sentence on the prisoner. Id. It is not material that the court passing the sentence is differently (if legally) constituted from that which affirmed the judgment. Id. $547. Judgment of appellate court, how entered and remitted.When the judgment of the appellate court is given, it must be entered in the judgment book, and a certified copy of the entry forthwith remitted to the clerk with whom the original judg |