1243. An appeal to the Supreme Court from a judgment of conviction, stays the execution of the judgment in all capital cases, and in all other cases upon filing with the clerk of the court in which the conviction was had, a certificate of the judge of such court, or of a justice of the Supreme Court, that, in his opinion, there is probable cause for the appeal, but not otherwise. [Approved March 30th, in effect July 1st, 1874.] Effect of appeal.-Under the provisions of this section, bail should not be allowed after conviction, except by a judge of the court in which the conviction was had, or by a justice of the Supreme Court, and then, only when the circumstances are of an extraordinary character-49 Cal. 680; 54 id. 35; and as a matter of discretion-48 Cal. 5. If the judge of the court in which the conviction was had fails to certify that in his opinion there is probable cause for the appeal, and the justices of the Supreme Court are satisfied that no error has intervened, they will not grant such a certificate, and the appeal will not stay the execution-45 Cal. 305. See preceding sections. 1244. If the certificate provided for in the preceding section is filed, the sheriff must, if the defendant be in his custody, upon being served with a copy thereof, keep the defendant in his custody without executing the judgment, and detain him to abide the judgment on appeal. See ante, § 1243, note. 1245. If before the granting of the certificate, the judgment has commenced, the further execution thereof is suspended, and upon service of a copy of such certificate the defendant must be restored, by the officer in whose custody he is, to his original custody. See ante, § 1243, note. 1246. Upon the appeal being taken, the clerk of the court with whom the notice of appeal is filed must, within twenty days thereafter, in case the bill of exceptions has been settled by the judge before the giving of said notice, but if not, then within twenty days from the settlement of the bill of exceptions, without charge, transmit to the clerk of the appellate court fifteen printed copies (one of which shall be certified to and be the original) of the notice of appeal, the record, and of all bills of exceptions; and, upon the receipt thereof, the clerk of the appellate court must file the original, and dispose of the copies as he is required to do in the case of transcripts on appeal in civil cases, and all his services as provided herein must be without charge. The clerk of the lower court must also within the time above specified serve printed copies of the above named papers, without charge, upon the defendant's attorney, and upon the Attorney General. The printing of the above named papers is a county charge. [Approved March 19th, 1889. ] Duty of clerks.-The clerk with whom the application is filed, must, within ten days after, without charge, transmit to the clerk of the appellate court, a copy of the notice of appeal, and of the record, and of all bills of exceptions, instructions, and indorsements thereon-49 Cal. 649. The transcript may be filed with the clerk, without the payment of fees in advance. The clerk cannot refuse to render his services for the people on account of non-payment of fees-20 Cal. 76. Records filed in the Supreme Court are not merely prima facie, but are conclusive in character-43 Cal. 177. Where the record purports to set forth substantially all the evidence given at the trial, and there was no evidence tending to show the offense committed in the county, it is a fatal error-48 Cal. 382; 9 id. 422; but where facts, as proved, are given, there is no necessity of setting forth the testimony-9 Cal. 422. The action of the court below upon the instructions must be shown either by an indorsement thereon, or by a bill of exceptions-40 Cal. 287; 28 id. 218; 32 id. 91. The Supreme Court will not review the action of the court below unless the record contains a bill of exceptions or a correct statement of the facts which transpired at the trial, signed and settled by the judge-32 Cal. 92; see 28 id. 218; 10 id. 86; 6 id. 411; ante, § 1171. A statement of evidence, not a part of the bill of exceptions, certified by the judge, will not be considered-48 Cal. 255. The attorney-general should examine the record presented on appeal, to see if it is in a condition to be submitted-45 Cal. 45. After the transcript has been filed in the Supreme Court, it will not be sent back in order that the statement or bill of exceptions may be changed by a resettlement, except upon documentary evidence or admission of the alleged mistake or omission-18 Cal. 93. Errors in dates, copies of documents and the like, can be corrected by resettlement, and upon a proper showing the Supreme Court may send the record back to the court below for that purpose-18 Cal. 94. Where the cause was submitted without argument, no brief on file for appellant, and judgment affirmed, and after appeal there was a stipulation of respondent's counsel extending the time for filing a brief which had not been filed, the court will set aside the judgment, and restore the case to the calendar if the case be important. Counsel are, however, guilty of an irregularity in not filing the stipulation-50 Cal. 469. It is the duty of either party to bring the attention of the court to any alteration of the record of a pending proceeding, promptly and at the earliest convenience-50 Cal. 448. CHAPTER II. DISMISSING AN APPEAL FOR IRREGULARITY. § 1248. For what irregularity, and how dismissed. 1248. If the appeal is irregular in any substantial particular, but not otherwise, the appellate court may, on any day, on motion of the respondent, upon five days' notice, accompanied with copies of the papers upon which the motion is founded, order it to be dismissed. [In effect April 9th, 1880.] 1249. The court may also, upon like motion, dismiss the appeal, if the return is not made as provided in section one thousand two hundred and forty-six, unless for good cause they enlarge the time for the purpose. § 1252. § 1253. CHAPTER III. ARGUMENT OF THE APPEAL. Appeals, when to be heard and determined. § 1254. Number of counsel to be heard. § 1255. Defendant need not be present. 1252. All appeals in criminal cases must be heard and determined by the appellate court, within sixty days after the record is filed in said appellate court, unless continued on motion or with the consent of the defendant. [In effect April 9th, 1880.] 1253. The judgment may be affirmed if the appellant fail to appear, but can be reversed only after argument, though the respondent fail to appear. See 55 Cal. 298. 1254. Upon the argument of the appeal, if the offense is punishable with death, two counsel must be heard on each side, if they require it. In any other case the court may, in its discretion, restrict the argument to one counsel on each side. See 55 Cal. 298. 1255. The defendant need not personally appear in the appellate court. See 55 Cal. 298. CHAPTER IV. JUDGMENT UPON APPEAL. § 1258. Judgment without regard to technical errors. § 1259. What may be reviewed on an appeal by defendant. § 1260. May reverse, affirm, or modify the judgment, and order new trial. § 1262. Defendant discharged on reversal of judgment. § 1263. Judgment to be executed on affirmance. § 1264. Judgment of appellate court, how entered and remitted. § 1265. Jurisdiction ceases after judgment remitted. 1258. 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. The Technical errors and defects.-On the hearing on appeal, the court will give judgment without regard to technical errors or defects, or to exceptions which do not affect substantial rights-53 Cal. 491. A technical error is not sufficient, of itself, to reverse a judg ment. It must be such as produces injury to the substantial rights of the defendant, and on him is cast the burden of showing it-47 Cal. 404. Objections to an indictment on the ground of omission of certain words, or of uncertainty in the form of the indictment, cannot be raised for the first time in the Supreme Court-20 Cal. 146. appellate court will not reverse a judgment by reason of an alleged error in a proceeding had on the trial, by express agreement of defendant and his counsel, unless bound so to do by some controlling rule of law-28 Cal. 465; nor by reason of errors which do not affect the substantial rights of the parties-32 Cal. 213; 34 id. 191; 50 id. 470. An error of court, to be ground for reversal of the judgment, must affect the substantial rights of the defendant, and the burden is on him to show that such is the case-47 Cal. 388. An error in reference to allowing defendant to ask a question is cured by afterward permitting a witness to answer the same question-48 Čal. 82. Entering an order in vacation instead of term time, even if irregular, does not work any injustice-44 Cal. 95. A judgment will not be disturbed on account of an erroneous instruction which was not applicable to the facts of the case-6 Cal. 543. Defendant cannot complain of an instruction which does no injury-49 Cal. 7. A mere want of perspicuity in an instruction which does not injure the prisoner, will not authorize a reversal-8 Cal. 90. Although some of the instructions may not state the law with precise accuracy, yet, if taken as a whole they are substantially correct and could not have misled the jury, judgment will not be disturbed-49 Cal. 580. Where the instructions given fairly and fully explain the law ap plicable to the questions actually tried, and which the jury were called |