§ 1262. Defendant, when to be discharged on reversal of judgment. If a judgment against the defendant is reversed without ordering a new trial, the appellate court must, if he is in custody, direct him to be discharged therefrom; or if on bail, that his bail be exonerated; or if money was deposited instead of bail, that it be refunded to the defendant. Legislation § 1262. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 545); in substance the same as Crim. Prac. Act, Stats. 1851, p. 267, § 502. § 1263. Judgment to be executed on affirmance. If a judgment against the defendant is affirmed, the original judgment must be enforced. Legislation § 1263. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 546); based on Crim. Prac. Act, Stats. 1851, p. 267, § 503, which read: "§ 503. On a judgment of affirmance against the defendant, the original judgment shall be carried into execution, as the appellate court may direct." § 1264. Judgment upon appeal, how entered and remitted. When the judgment of the appellate court is given, it must be entered in the minutes, and a certified copy of the entry, with a copy of the opinion of the court attached thereto, forthwith remitted to the clerk of the court from which the appeal was taken. [Amendment approved 1905; Stats. 1905, p. 701.] Legislation § 1264. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 547); in substance the same as Crim. Prac. Act, Stats. 1851, p. 267, § 504. When enacted in 1872, § 1264 read: "1264. When the judgment of the appellate court is given, it must be entered in the minutes, and a certified copy of the entry forthwith remitted to the clerk of the court from which the appeal was taken." 2. Amendment by Stats. 1901, p. 495; unconstitutional. See note, § 5, ante. 3. Amended by Stats. 1905, p. 701; the code commissioner saying, "The design of the amendment is to require a copy of the opinion of the supreme court to be certified to and sent to the clerk of the court below with the remittitur." § 1265. Jurisdiction of appellate court ceases after judgment remitted. After the certificate of the judgment has been remitted to the court below, the appellate court has no further jurisdiction of the appeal or of the proceedings thereon, and all orders necessary to carry the judgment into effect must be made by the court to which the certificate is remitted. Legislation § 1265. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 549); based on Crim. Prae. Act, Stats. 1851, p. 267, § 506, which read: "§ 506. After the certificate of judgment has been remitted, as provided in section five hundred and fourth, the appellate court shall have no further jurisdiction of the appeal, or of the proceedings thereon, and all orders which may be necessary to carry the judgment into effect shall be made by the court to which the certificate is remitted." Pen. Code-38 TITLE X. Miscellaneous Proceedings. Chapter I. Bail. Articles I-VIII. §§ 1268-1317. II. Who may be Witnesses in Criminal Actions. §§ 13211324. III. Compelling the Attendance of Witnesses. §§ 1326-1333. VII. Compromising Certain Public Offenses by Leave of the VIII. Dismissal of the Action, Before or After Indictment, for IX. X. Entitling Affidavits. § 1401. XI. Errors and Mistakes in Pleadings and Other Proceedings. XII. Disposal of Property Stolen or Embezzled. §§ 1407–1413. CHAPTER I. Article I. In What Cases the Defendant may be Admitted to Bail. §§ 1268-1274. II. Bail upon Being Held to Answer Before Indictment. §§ 1277-1281. III. Bail upon an Indictment Before Conviction. §§ 1284-1289. V. Deposit Instead of Bail. VI. VII. §§ 1295-1297. Surrender of the Defendant. §§ 1300-1302. Forfeiture of the Undertaking of Bail or of the Deposit of VIII. Recommitment of the Defendant, After Having Given Bail or Deposited Money Instead of Bail. §§ 1310-1317. § 1268. ARTICLE I. In What Cases the Defendant may be Admitted to Bail. Admission to bail defined. § 1269. Taking of bail defined. § 1270. § 1271. § 1272. § 1273. § 1274. Offense not bailable. In what cases defendant may be admitted to bail before conviction. Admission to bail upon appeal. Nature of bail. When bail is matter of discretion, notice of application must be given to district attorney. § 1268. Admission to bail defined. Admission to bail is the order of a competent court or magistrate that the defendant be discharged from actual custody upon bail. Bail, where taken: See ante, § 822; post, § 1284. Legislation § 1268. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 550); in substance the same as Crim. Prae. Act, Stats. 1851, p. 267, § 507. § 1269. Taking of bail defined. The taking of bail consists in the acceptance, by a competent court or magistrate. of the undertaking of sufficient bail for the appearance of the defendant, according to the terms of the undertaking. or that the bail will pay to the people of this state a specified sum. Excessive bail. Excessive bail shall not be required: Const., art. i, § 6; U. S. Const., Amdt. 8. Legislation § 1269. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 551); in substance the same as Crim. Prac. Act, Stats. 1851, p. 268, § 508. § 1270. Offense not bailable. A defendant charged with an offense punishable with death cannot be admitted to bail, when the proof of his guilt is evident or the presumption. thereof great. The finding of an indictment does not add to the strength of the proof or the presumptions to be drawn therefrom. Constitutional provision. All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great: Const., art. i, § 6. Legislation § 1270. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 552); based on Crim. Prac. Act, § 510, as amended by Stats. 1865-66, p. 418, § 1, which read: "§ 510. No person shall be admitted to bail when he is charged with an offense punishable with death where the proof is evident or the presumption great; but the finding of an indictment by a grand jury shall in no case be taken to create such a presumption as to preclude the court in its discretion admitting a defendant to bail." § 1271. In what cases defendant may be admitted to bail before conviction. If the charge is for any other offense, he may be admitted to bail before conviction, as a matter of right. Legislation § 1271. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 553); based on Crim. Prac. Act, § 509, as amended by Stats. 1863, p. 151, § 1, which read: "§ 509. A person charged with an offense may be admitted to bail, before conviction, as a matter of right, in all cases except as specified in section five hundred and ten." § 1272. Admission to bail upon appeal. When admitted to bail after conviction and upon appeal. After conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail: 1. As a matter of right, when the appeal is from a judg ment imposing a fine only. 2. As a matter of right, when the appeal is from a judgment imposing imprisonment in cases of misdemeanor. 3. As a matter of discretion in all other cases. ment approved 1909; Stats. 1909, p. 591.] Bail after conviction: See post, § 1273. [Amend Giving notice to district attorney when bail discretionary: See post, § 1274. Bail on appeal: See post, §§ 1273, 1291, 1292. Legislation § 1272. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 555); based on Crim. Prac. Act, Stats. 1851, p. 268, § 512. When § 1272 was enacted in 1872, it did not contain the present subd. 2, the present subd. 3 being then numbered 2. 2. Amended by Stats. 1909, p. 591. § 1273. Nature of bail. If the offense is bailable, the defendant may be admitted to bail before conviction: First. For his appearance before the magistrate, on the examination of the charge, before being held to answer. Second. To appear at the court to which the magistrate is required to return the depositions and statement, upon the defendant being held to answer after examination. Third. After indictment, either before the bench-warrant is issued for his arrest, or upon any order of the court committing him, or enlarging the amount of bail, or upon his being surrendered by his bail to answer the indictment in the court in which it is found, or to which it may be transferred for trial. And after conviction, and upon an appeal: First. If the appeal is from a judgment imposing a fine only, on the undertaking of bail that he will pay the same, or such part of it as the appellate court may direct, if the judgment is affirmed or modified, or the appeal is dismissed. Second. If judgment of imprisonment has been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed, or that in case the judgment be reversed, and that the cause be remanded for a new trial, that he will appear in the court to which said cause may be remanded, and submit himself to the orders and process thereof. [Amendment approved 1876; Code Amdts. 1875-76, p. 116.] Bail after conviction: See ante, § 1272. Bail, when discretionary: See ante, § 1272. Bail upon appeal: See ante, § 1272; post, §§ 1291, 1292. Legislation § 1273. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 556); based on Crim. Prac. Act, Stats. 1851, p. 268, §§ 513, 514, which read: "§ 513. Before conviction a defendant may be admitted to bail: First, for his appearance before the magistrate, on the examination of the charge before being held to answer. Second, to appear at the court to which the magistrate is required, by section one hundred and seventy-six, to return the depositions and statement upon the defendant being held to answer after examination. Third, after indictment, either before the bench-warrant issued for his arrest, or upon any order of the court committing or enlarging the amount of bail, or upon his being surrendered by his bail to answer the indictment in the court in which it is found, or to which it may be sent or removed for trial. § 514. After conviction and upon an appeal the defendant may be admitted to bail as follows: First, if the appeal be from a judgment imposing a fine only on the recognizance of bail that he will pay the same or such part of it as the appellate court may direct, if the judgment be affirmed or modified or the appeal be dismissed. Second, if judg ment of imprisonment have been given that he will surrender himself in execution of the judgment, upon its being confirmed or modified, or upon the appeal being dismissed." 2. Amended by Code Amdts. 1875-76, p. 116, in the second subd. 2, adding the final clause of the subdivision, beginning "or that in case the judgment be reversed." § 1274. When bail is matter of discretion, notice of application must be given to district attorney. When the admission to bail is a matter of discretion, the court or officer to whom the application is made must require reasonable notice thereof to be given to the district attorney of the county. Legislation § 1274. Enacted February 14, 1872; based on Crim. Prac. Act, Stats. 1851, p. 268, § 511, which read: "§ 511. When the admission to bail is a matter of discretion, the court or officer by whom it may be ordered, shall require such notice of the application therefor as he may deem reasonable to be given to the district attorney of the county where the examination is had." § 1277. $1278. § 1279. § 1280. § 1281. ARTICLE II. Bail upon Being Held to Answer Before Indictment. Bail, how put in and form of the undertaking. Bail, how to justify. On allowance of bail, defendant to be discharged. § 1277. What magistrates may admit to bail. When the defendant has been held to answer upon an examination for a public offense, the admission to bail may be by the magistrate by whom he is so held, or by any magistrate who has power to issue the writ of habeas corpus. What magistrates have power to admit to bail: See post, § 1291. Legislation § 1277. Enacted February 14, 1872 (N. Y. Code Crim. Proc., §§ 557, 558); in substance the same as Crim. Prac. Act, Stats. 1851, p. 268, § 515. § 1278. Bail, how put in and form of the undertaking. Bail is put in by a written undertaking, executed by two sufficient sureties (with or without the defendant, in the discretion of the magistrate), and acknowledged before the court or magistrate, in substantially the following form: |