execute the judgment; if it is found that she is pregnant the warden must suspend the execution of the judgment, and transmit a certified copy of the finding and certificate to the governor. When the governor receives from the warden a certificate that the defendant is no longer pregnant, he must issue to the warden his warrant appointing a day for the execution of the judgment. [Amendment approved 1905; Stats. 1905, p. 699.]

Legislation § 1226. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., §§ 501, 502); in substance the same as Crim. Prac. Act, Stats. 1851, p. 264, §§ 476, 477. When enacted in 1872, § 1226 read: "1226. If it is found by the inquisition that the female is not pregnant, the sheriff must execute the judgment; if it is found that she is pregnant, the sheriff must suspend the execution of the judgment, and transmit the inquisition to the governor. When the governor is satisfied that the female is no longer pregnant, he may issue his warrant appointing a day for the execution of the judgment."

2. Amended by Stats. 1891, p. 274, in first sentence, changing "sheriff" to "warden" in both instances.

3. Amendment by Stats. 1901, p. 493; unconstitutional: See note. § 5, ante.

4. Amended by Stats. 1905, p. 699; the code commissioner saying, "The change consists in the insertion of the words 'certified copy of the finding and certificate,' and in the addition of the provision relative to the governor's issuing his warrant upon receiving a certificate from the warden."

§ 1227. Judgment of death remaining in force, not executed. No appeal from order of court. If for any reason a judgment of death has not been executed, and it remains in force, the court in which the conviction is had, on the application of the district attorney of the county in which the conviction is had, must order the defendant to be brought before it, or if he is at large, a warrant for his apprehension may be issued. Upon the defendant being brought before the court, it must inquire into the facts, and if no legal reason exists against the execution of the judgment, must make an order that the warden of the state prison to whom the sheriff is directed to deliver the defendant execute the judgment at a specified time. The warden must execute the judgment accordingly. From an order directing and fixing the time for the execution of a judgment, as herein provided, there is no appeal. [Amendment approved 1905; Stats. 1905, p. 700.]

Legislation § 1227. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc.. § 503); in substance the same as Crim. Prac. Act, Stats. 1851, p. 265, §§ 478, 479. When enacted in 1872, § 1227 read: "1227. If for any reason a judgment of death has not been executed and it remains in force, the court in which the conviction was had, on the application of the district attorney, must order the defendant to be brought before it, or, if he is at large, a warrant for his

apprehension may be issued. Upon the defendant being brought before the court it must inquire into the facts, and if no legal reasons exist against the execution of the judgment, must make an order that the sheriff execute the judgment at a specified time. The sheriff must execute the judgment accordingly."

2. Amended by Stats. 1891, p. 274, to read: "1227. If for any reason a judgment of death has not been executed, and it remains in force, the court in which the conviction is had, on the application of the district attorney of the county in which the conviction is had, must order the defendant to be brought before it, or if he is at large, a warrant for apprehension may be issued. Upon the defendant being brought before the court, it must inquire into the facts, and if no legal reasons exist against the execution of the judgment, must make an order that the warden of the state prison to whom the sheriff is directed to deliver the defendant, shall execute the judgment at a specified time. The warden must execute the judg ment accordingly."

3. Amendment by Stats. 1901, p. 493; unconstitutional: See note, § 5, ante.

4. Amended by Stats. 1905, p. 700; the code commissioner saying, "The change consists in the addition of the last sentence, which provides that no appeal can be taken from the order fixing the time for the execution of the judgment."

§ 1228. Punishment of death, how inflicted. The punishment of death must be inflicted by hanging the defendant by the neck until he is dead.

Warrant of execution: Ante, § 1217.

Execution of judgment of death: See ante, § 1217; post, § 1229.

Legislation § 1228. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 500); in substance the same as Crim. Prac. Act, Stats. 1851, p. 265, § 480.

§ 1229. Execution, where to take place and who to be present. A judgment of death must be executed within the walls of one of the state prisons designated by the court by which judgment is rendered. The warden of the state prison where the execution is to take place must be present at the execution and must invite the presence of a physician, the attorney-general of the state, and at least twelve reputable citizens, to be selected by him; and he shall at the request of the defendant, permit such ministers of the gospel, not exceeding two, as the defendant may name, and any persons, relatives or friends, not to exceed five, to be present at the execution, together with such peace-officers as he may think expedient, to witness the execution. But no other persons than those mentioned in this section can be present at the execution, nor can any person under age be allowed to witness the same. [Amendment approved 1891; Stats. 1891, p. 274.]

Execution of judgment of death: See ante, §§ 1217, 1228.

Legislation § 1229. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., §§ 506, 507); in substance the same as Stats. 1858, p. 192, § 1. When 1229 was enacted in 1872, the first part of the section read, "A judgment of death must be executed within the walls or yard of a jail, or some convenient private place in the county. The sheriff of the county must be present at the execution, and must invite the presence of a physician, the district attorney of the county, and at least twelve reputable citizens, to be selected by him," thereafter the section proceeding as the amendment of 1891 (the present section).

2. Amended by Stats. 1891, p. 274.

3. Amendment by Stats. 1901, p. 493; unconstitutional. See note, § 5, ante.

§ 1230. Return upon death-warrant. After the execution, the warden must make a return upon the death-warrant to the court by which the judgment was rendered, showing the time, mode, and manner in which it was executed. [Amendment approved 1891; Stats. 1891, p. 274.]

Legislation § 1230. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 508); based on Stats. 1858, p. 193, § 2, which read. "Sec. 2. After the execution, the sheriff shall make a return upon the death-warrant, setting forth particularly that said warrant has been executed according to law." When enacted in 1872, § 1230 read: "1230. After the execution, the sheriff must make a return upon the death-warrant, showing the time, mode, and manner in which it was executed."

2. Amended by Stats. 1891, p. 274.

TITLE IX.

Appeals to the Supreme Court.

Chapter I. Appeals, When Allowed and How Taken, and the Effect
Thereof. §§ 1235-1247e.

II. Dismissing an Appeal for Irregularity. §§ 1248, 1249.
III. Argument of the Appeal.

§§ 1252-1255.

IV. Judgment upon Appeal. §§ 1258-1265.

CHAPTER I.

Appeals, When Allowed and How Taken, and the Effect Thereof.
Appeals, by whom taken on questions of law.
Parties, how designated on appeal.

§ 1235.

§ 1256.

In what cases an appeal may be taken by the defendant.
In what cases by the people.
Appeal, how taken by defendant.
Appeal by the people.

Clerk must enter notice of appeal.
Effect of an appeal by the people.
Effect of an appeal by the defendant.

Same.

§ 1242.

§ 1243. § 1244. § 1245.

Same.

§ 1246.

§ 1247.

Papers to be transmitted to appellate court. Copy to defendant and district attorney.

Settlement of grounds of appeal.

§ 1217a. Duty of clerk to deliver copies to parties. Proposed correc

tions.

§ 1247b. When appellant shall transcribe.

81247c. Further transcription.

§ 1247d. Time cannot be extended by trial court. § 1247e. Printing in criminal cases.

§ 1235. Appeals, by whom taken on questions of law. Either party in a prosecution by indictment or information may appeal to the supreme court on questions of law alone, as prescribed in this chapter. [Amendment approved 1905; Stats. 1905, p. 700.]

Constitutional provision. As to appellate jurisdiction, see Const. 1879, art. vi, § 4.

Legislation § 1235. 1. Enacted February 14, 1872; based on Crim. Prac. Act, § 481, as amended by Stats. 1863, p. 161, § 19, and § 482, as amended by Stats. 1858, p. 218, § 2, which read: "Section 481. The party aggrieved in a criminal action, whether that party be the people or the defendant, may appeal as follows: First-To the county court, from a final judgment of a justice's, recorder's, or other inferior municipal court. Second-To the supreme court, from a final judgment of the district court, or county court, in all criminal cases amounting to a felony, on questions of law alone; also, from an order of the district court, or county court, granting or refusing a new trial, or which affects a substantial right in a criminal case amounting to felony, on questions of law alone."

"Section 482. The appeal to the supreme court can be taken on questions of law alone. The appeal to the county court can be taken on both questions of law and fact." When enacted in 1872, § 1235 read: "1235. Either party in a criminal action amounting to a felony may appeal to the supreme court, on questions of law alone, as prescribed in this chapter."

2. Amendment by Stats. 1901, p. 494; unconstitutional. See note, § 5, ante.

3. Amended by Stats. 1905, p. 700; the code commissioner saying, "The amendment is designed to make the section conform to art. vi, § 4. of the constitution, which provides that the supreme court has jurisdiction in all criminal cases prosecuted by indictment or information in a court of record, on questions of law alone.' it having been held (in People v. Jordan, 65 Cal. 644) that it has jurisdiction in all such cases, and that if its jurisdiction by appeal is restricted to cases of felony, it would devolve upon it to establish some appropriate system of appellate procedure by which it could review all other convictions based upon an indictment or information."

§ 1236. Parties, how designated on appeal. The party appealing is known as the appellant, and the adverse I arty as the respondent, but the title of the action is not changed in consequence of the appeal.

Legislation § 1236. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 516); in substance the same as Crim. Prac. Act, Stats 1851, p. 265, § 483.

§ 1237. In what cases an appeal may be taken by the defendant. An appeal may be taken by the defendant: 1. From a final judgment of conviction;

2. From an order denying a motion for a new trial;

3. From any order made after judgment, affecting the substantial rights of the party.

Defendant cannot appeal from order carrying unexecute death sentence into effect: See ante, § 1227.

Legislation § 1237. Enacted February 14, 1872 (N. Y. Co le Crim. Proc., § 517); based on Crim. Prac. Act, § 481, q. v., ante, Legislation § 1235.

§ 1238. In what cases by the people. An appeal may be taken by the people:

1. From an order setting aside the indictment or information;

2. From a judgment for the defendant on a demurrer to the indictment, accusation or information;

3. From an order granting a new trial;

4. From an order arresting judgment;

5. From an order made after judgment, affecting the substantial rights of the people. [Amendment approved 1905; Stats. 1905, p. 700.j

Legislation § 1238. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 518); based on Crim. Prac. Act, § 481, q. v., ante,