An appeal lies to the court of general sessions of New York county from a judgment of conviction by the special sessions entered upon an order affirming a conviction, by a police justice, of defendant as a disorderly person upon his wife's charge of abandonment, without adequate support. People ex rel. Vitan v. Vitan, 20 Abb. N. C., 303; 10 N. Y. Supp., 910, 911. Court of sessions of the county.-When, in this section, the term "the court of sessions of the county is used, it evidently refers to the court of sessions as defined in section 38, ante, which includes the court of general sessions of the city and county of New York. People ex rel. Com'rs, etc., v. Glaze, 48 St. Rep., 811; 65 Ĥun, 560; 20 N. Y. Supp., 577. Prosecutor's appeal, etc.-The prosecutor has no right of appeal from a judgment for costs, rendered against him by a court of special sessions in a prosecution for petit larceny. People v. Carr, 28 St. Rep., 287; 54 Hun, 444; 7 N. Y. Supp., 724. No appeal lies to a court of sessions from a judgment of the special sessions charging a prosecutor with costs. People v. Norton, 33 Hun, 277; 2 N. Y. Cr., 324. The right of appeal is provided by the amendment of 1890 to section 720, ante. § 750. Appeal, when allowed.-An appeal may be allowed for an erroneous decision or determination of law or fact upon the trial. Amended by chap. 360 of 1882. This amendment substituted the present, for the original section. An appeal was previously limited to an erroneous decision of the court. § 751. Appeal, how taken.-For the purpose of appealing, the defendant, or some one on his behalf, must within sixty days after the judgment, or within sixty days after the commitment where the appeal is from the latter, make an affidavit stating the fact showing the alleged errors in the proceedings or convic tion or commitment complained of, and must within that time present it to the county judge or a justice of the supreme court, or in the city and county of New York, to the recorder or a judge authorized to hold a court of general sessions in that city, or in the city of Albany, to the recorder, and may apply thereon for the allowance of the appeal. Am'd, ch. 781 of 1897. Amended by chap. 39 of 1890. This amendment inserted in the original section the words "or within twenty days after the commitment where the appeal is from the latter," and "or commitment," and substituted "justice for judge," and " a judge authorized to hold a court" for "city judge or judge," and "in" for "of." Affidavit--An appeal may be taken by the presentation of an affidavit showing the alleged errors of which complaint is made. People ex rel Baker v. Beatty, 39 Hun, 478. The error to be relied upon on appeal must be specified in the affidavit, upon which the appeal is allowed, for it will not be considered in the appellate court. People v. McGann, 6 St. Rep., 541; 43 Hun, 57; People ex rel. Baker v. Beatty, 39 id., 476. § 752. How allowed.-If, in the opinion of the judge, it is proper that the question arising on the appeal should be decided by the county court, he must indorse on the affidavit an allowance of the appeal to that court; and the defendant, or his attorney, must within five days thereafter, serve a copy of the affidavit upon which the appeal is granted, together with a notice that the same has been allowed, upon the district attorney of the county in which the appeal is to be heard. Am'd, ch. 536 of 1897. To take effect Sept. 1, 1897. § 753. Release on bail pending an appeal.-Upon allowing the appeal, if satisfied that there is a reasonable doubt whether the conviction should stand, but not otherwise, the judge may take from the defendant, a written undertaking, with such sureties as he may approve, that the defendant will abide the judgment of the county court upon the appeal, and may thereupon order that he be dis charged from imprisonment, on service of the order upon the officer having him in custody, or if he be not in custody, that all proceedings on the judgment be stayed. Am'd by chap. 880 of 1895. In effect, January 1, 1896. Amended by chap. 279 of 1892. This amendment inserted, after the word "appeal" in the original section, the words "if satisfied that there is a reasonable doubt whether the conviction should stand, but not otherwise. § 754. Undertaking, when and with whom filed. The undertaking upon the appeal must be immediately filed with the clerk of the county court, and the said clerk of the county court shall within five days thereafter, give notice to the district attorney of the county that such bond has been filed, which notice shall give the name of the defendant and his sureties, the offense for which the defendant was charged and the amount of the bail given. Am'd, ch. 536, 1897. To take effect Sept. 1, 1897. § 755. Delivery of affidavit, and allowance of appeal.The affidavit and allowance of the appeal must be delivered to the magistrate, or clerk of the court rendering the judgment, within five days after the allowance of the appeal, and when so delivered the appeal is deemed taken. Amended by chap. 39 of 1890. This amendment substituted the words "or clerk of the court rendering the judgment," for the words "who tried the action, or, if in the city and county of New York, to the clerk of the court of special sessions." 756. Return, when and how made.-The magistrate or court rendering the judgment, must make a return to all the matters stated in the affidavit, and must cause the affidavit and return to be filed in the office of the county clerk, within ten days after the service of the affidavit and allowance of the appeal. Am'd by chap. 880 of 1895. In effect, January 1, 1896. Return. The affidavit and return made up a sort of bill of exceptions which state only so much of the proceedings as are necessary to give point to the alleged errors stated in the affidavit. People ex rel. Baker v. Beatty, 39 Hun, 478. The magistrate, upon appeal, is not required to make returns as to matters not contained in the affidavit. People v. McGann, 6 St Rep., 541; 43 Hun, 57. The return is made with reference to the errors only. Id. 757. Compelling return.-If the return be not made within the time prescribed in the last section, the county court, or the judge thereof, may order that a return be made within a specified time which may be deemed reasonable; and the court may, by attachment, compel a compliance with the order. Am'd by chap. 880 of 1895. In effect, January 1, 1896. § 758. Ordering and compelling further or amended return.—If the return be defective, a further or amended return may be ordered, and the order may be enforced in the manner provided in the last section. See People v. Carnrick, 39 St. Rep., 596; 15 N. Y. Supp., 438. § 759. Appeal, by whom and how brought to argument. When the return is made the appeal may be brought to argument by the defendant, on any day in term, upon a notice of not less than five days before the term to the district attorney of the county, and must be so brought to argument within one year after the return has been filed in the office of the county clerk. Am'd, ch. 619 of 1897. To take effect Sept. 1, 1897. § 760. If not brought to argument, as provided in last section, to be dismissed, unless continued for cause shown.-If the defendant omit to bring the appeal to argument, as provided in the last section, the court must dismiss it, unless it continue the same, by special order, for cause shown. § 761. Service of return on district attorney, and consequences of failure. The defendant must serve upon the district attorney, a copy of the return, with or before the notice of argument. If he fail to do so, the appeal must be dismissed, upon proof of the failure, unless the court otherwise direct. § 762. If brought to hearing by defendant, appeal must be argued, though no one opposes, etc.-If the appeal be brought to hearing by the defendant, it must be argued, though no one appear to oppose; but if brought on by the district attorney, he may take judgment of affirmance, unless the defendant appear to argue the appeal. § 763. Appeal to be heard on original return.-The appeal must be heard upon the original return; and no copy thereof need be furnished for the use of the court. § 764. Judgment on appeal.-After hearing the appeal, the court must give judgment, without regard to technical errors or defects, which have not prejudiced the substantial rights of the defendants, and may render the judgment which the court below should have rendered, or may, according to the justice of the case, affirm or reverse the judgment in whole or in part, as to all or any of the defendants, if there be more than one, or may order a new trial, or may modify the sentence. Amended by chap. 360 of 1882. This amendment substituted the word "defendant" for "defendants" where first used in the section, and added the words "or may modify the sentence." See notes under section 717, ante. See notes under section 542 of the Code of Criminal Procedure. Technical objections.-Technical objections are disregarded in rendering judgment on appeal. People v. Cutler, 1 N. Y. Cr., 178; 28 Hun, 465. In reviewing the judgment of the court of special sessions, it is the duty of the court of sessions of the county to give judgment without regard to technical errors or defects, which have not prejudiced the substantial rights of the defendant. People v. Upton, 29 St. Rep., 777, 779; 9 N. Y. Supp., 686. Where the appellate court can see that a violation of section 427, ante, is harmless, it will disregard it under this section. People v. Moore, 20 St. Rep., 4; 50 Hun, 359; 3 N. Y. Supp., 161. Modification. This section gives to the court of sessions, upon appeal, power to modify the sentence of the court of special sessions. People t. Starks, 17 St. Rep., 237; 1 N. Y. Supp., 723. Under this section, the court of sessions is authorized, on appeal, to change a sentence of imprisonment in the penitentiary imposed by the court of special sessions, to imprisonment in the county jail, and affirm the conviction and sentence as thus modified. People v. McIntosh, 5 N. Y. Cr., 39. The appellate court, upon appeal, can set aside an illegal, and pronounce a legal, judgment. People ex rel. Stokes v. Riseley, 38 Hun, 282; 4 N. Y. Cr., 111. But a prisoner, held under a void judgment, is not confined to an appeal; he may procure his discharge by habeas corpus. Id. Power of special sessions.-After an appeal to the court of sessions, the justice of the peace, who held the special sessions, has no power to alter the sentence. People v. Starks, 17 St. Rep., 234; 1 N. Y. Supp., 723. In such case, a supreme court justice, on adjudging the sentence of the special sessions illegal, cannot remand the prisoner to the latter court for re-sentence. Id. See People v. Clark, 41 St. Rep., 448; 62 Hun, 84; 16 N. Y. Supp., 695; People v. Harris, 28 St. Rep., 300; 4 Silv. (Sup. Ct.), 536; 7 N. Y. Supp., 776. § 765. Judgment to be entered on the minutes.-When judgment is given upon the appeal, it must be entered upon the minutes. § 766. Order upon judgment for affirmance.-If the judgment be affirmed, the court must direct its execution, and if the defendant have been discharged on bail, after the commencement of the execution of a judgment of imprisonment, must commit him to the proper custody for the remainder of his term of imprisonment. § 767. Order upon judgment of reversal.-If the judgment be reversed, and the defendant be imprisoned in pursuance of the judgment of the police court, the county court must order him to be discharged. Am'd by chap. 880 of 1895. In effect January 1, 1896. 768. If new trial ordered, to be had in county court.If a new trial be ordered, it must be had in the county court, in the same manner as upon an issue of fact on an indictment; and that court may proceed to judgment and execution, as in an action prosecuted by indictment. But where the appeal was from a judgment of commitment made under section two hundred and ninetyone of the Penal Code, the new trial shall be had before the county court without a jury. Am'd by chap. 880 of 1895. In effect January 1, 1896. Amended by chap. 39 of 1890. This amendment added the latter sentence of the present section. $769. Proceedings to carry judgment upon appeal into effect, to be had in county court. If any proceedings be necessary to carry the judgment upon the appeal in effect, they must be had in the county court. Am'd by chap. 880 of 1895. In effect January 1, 1896. 770. On judgment of connty court, defendant may appeal to the appellate division.-If the judgment on the appeal be against the defendant, he may appeal therefrom to the appellate division of the supreme court, in the same manner as from a judgment in an action prosecuted by indictment, and may be admitted to bail upon the appeal, in like manner. Am'd by chap. 880 of 1895. In effect January 1, 1896. Appeal to supreme court.-If, on an appeal from the court of special sessions to the court of sessions, the judgment is against the defendant, he may appeal therefrom to the supreme court. People v. Snyder, 7 St. Rep., 842; 44 Hun, 193. No appeal can be taken by the people from a judgment of a court of ses sions, reversing a judgment of a court of special sessions convicting the de fendant of an assault. Id. An appeal by the defendant to the general term from a judgment of affirmance of the general sessions is given by this section. People v. Trumble, 1 N. Y. Cr., 447. See People ex rel. Wright v. Court, etc., 9 St. Rep., 607; 45 Hun, 55. § 771. Judgment of supreme court upon appeal, final.The judgment of the appellate division of the supreme court upon the appeal is final; except that where the original appeal was from a judgment of commitment of a child, either party may ap peal to the court of appeals in like manner as a defendant under section five hundred and nineteen of this Code. Am'd by chap. 880 of 1895. In effect January 1, 1896. This amendment added the exception to the present section. The judgment of the supreme court on an appeal from a judgment of the sessions, affirming a conviction of the special sessions, is final. People v. Sny der, 7 St. Rep., 842; 44 Hun, 193. See People ex rel. Wright v. Court, etc., 9 St. Rep., 607; 45 Hun, 55. 772. Proceedings to carry into eflect judgment of su preme court. The same proceedings must be had, to carry into effect the judgment of the appellate division of the supreme court upon the appeal, as if it had been taken upon a judgment in an action prosecuted by indictment. Am'd by chap. 880 of 1895. In effect January 1, 1896. See People v. Clark, 41 St. Rep. 449; 62 Hun, 84; 16 N. Y. Supp., 695. |