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Escape of defendant pending appeal.-A defendant who escapes during the pendency of his appeal will not be heard in the appellate 1249. Dismissal for want of a return.

court unless he returns to custody, but his appeal will be dismissed: People v. Redinger, 55 Cal. 290.

SEC. 1249. The court may also, upon like motion, dismiss the appeal, if the return is not made as provided in section twelve hundred and forty-six, unless for good cause they enlarge the time for that purpose.



1252. Appeals, when to be heard and determined.

SEO. 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. [Amendment, approved April 9, 1880; Amendments 1880, 10 (Ban. ed. 154); took effect from passage.]

1253. Judgment may be affirmed, but cannot be reversed without argument.

SEC. 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. Right to appear by counsel: People v. Redinger, 55 Cal. 298.

1254. Number of counsel to be heard.

SEC. 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.

Stats. 1854, 81, sec. 5.

1255. Defendant need not be present. SEO. 1255. The defendant need not personally appear in the appellate court. Right to appear by counsel.-A defendant who has escaped from custody has no right to appear in the appellate court by counsel until he has returned into custody. By breaking jail and escaping, he waives his right to have counsel appear for him: People v. Redinger, 55 Cal. 298; Commonwealth v. Andrews, 97 Mass. 544; Sherman v. Commonwealth, 14 Gratt. 677; Leftwich's Case, 20 Id. 716; People v. Genet, 59

N. Y. 80; Smith v. United States, 94 U. S. 97. It is generally the practice, on motions to dismiss an appeal because the defendant refuses to submit to the jurisdiction of the court, to enter an order directing the appeal to be dismissed unless the defendant returns into cus tody by a fixed date: Id.; People v. Redinger, 55 Cal. 299.



1258. Court to give judgment without regard to technical errors.

SEC. 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.

Judgment on appeal.-On hearing on appeal the supreme court will give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the defendant: People v. Sprague, 53 Cal. 491; People v. Turley, 50 Id. 469; People v. Nelson, 56 Id. 77; People v. St. Clair, Id. 406, S. C., 55 Id. 524; People v. Cronin, 34 Id. 191; People v. Dick, 32 Id. 213. Errors which do

not prejudice will not warrant a reversal: Id.; sec. 1404; People v. Rolfe, 61 Cal. 540, 544; People v. Morine, Id. 367, 373; People v. Smith, 59 Id. 601; People v. Williams, Id. 674, 677, where the court went outside the evidence in charging the jury, but simply by way of illus tration. A technical error is not sufficient of itself to reverse a judgment, but it must appear that by such error a substantial right of

the defendant has been thereby affected, and the defendant must affirmatively prove that fact: People v. Brotherton, 47 Id. 404. Thus a failure to record the written verdict before the jury is discharged, though an irregularity, is not fatal to the judgment unless it appears that the defendant may have been prejudiced thereby in some substantial right: People v. Gilbert, 57 Id. 96. So the recording a verdict before it is read to the jury is an irregularity, but the defendant cannot complain, because he is not affected in a substantial right: People v. Nichols, 7 Pac. C. L. J. 436; neither can the defendant complain because an order denying his motion for a change of venue was entered in vacation instead of term time: People v. Congleton, 44 Cal. 93. A judgment will not be reversed by the appellate court by reason of alleged error in a proceeding had in the course of the trial by express agreement of the defendant and his counsel, unless bound to do so by some controlling rule of law: People v. Henderson, 28 Id. 466. So a party cannot complain of an instruction given at his own request: People v. Lopez, 59 Id. 362. The appellant must affirmatively show error; the appellate court will not presume it: People v. Ferris, 56 Id. 442; People v. Gilbert, 60 Id. 108, 112; Peo

ple v. Johnson, 47 Id. 122; People v. Brotherton, Id. 388; People v. Best, 39 Id. 690; People v. Jocelyn, 29 Id. 562; People v. King, 27 Îd. 507; People v. Levison, 16 Id. 98; People v. Bonney, 19 Id. 426; People v. Connor, 17 Id. 354; People v. Robinson, 17 Id. 363; People v. Bealoba, Id. 389; People v. Lafuente, 6 Id. 202; but where error has been committed in a criminal trial, it will be presumed to have injured the defendant unless the contrary clearly appears: People v. Murphy, 47 Id. 103; People v. Furtado, 57 Id. 345, 347; but see People v. Gray, 61 Id. 182, and the cases there cited. If there is a substantial conflict in the evidence the verdict will not be disturbed on appeal, on the ground that it was not justified by the evidence: People v. Montgomery, 53 Id. 576; People v. Smallman, 55 Id. 185. Although some of the instructions given may not state the law applicable to the case with precise accuracy, yet if taken as a whole they are substantially correct, and could not have misled the jury, the judgment will not be disturbed: People v. Cleveland, 49 Id. 577; People v. Clementshaw, Id. 385; People v. Salorse, 62 Id. 139, 144; People v. Ye Park, Id. 204; People v. Tamkin, Id. 468; People v. Gray, 61 Id. 164, 182; see in note to sec. 1127. Immaterial errors: Sec. 1404, note.

1259. What may be reviewed on appeal by defendant from judgment.

SEC. 1259. Upon an appeal taken by the defendant from a judgment, the court may review any intermediate order or ruling involving the merits, or which may have affected the judgment.

Review on appeal.-An order denying a motion for a continuance may be reviewed on appeal: People v. Diaz, 6 Cal. 248; see secs. 1052, note, 1173, note. Any intermediate order of the court, and any action of the court during the progress of the trial, by which defendant is deprived of a substantial legal right, or by which to any extent a substantial legal or constitutional privilege claimed by him is

withheld, is a proper subject-matter of review on appeal: People v. Harrington, 42 Cal. 165. An order directing that a criminal charge ignored by a grand jury be submitted to another is not appealable: People v. Clarke, Id. 622; nor an order arresting a judgment: People v. Ah Kim, 44 Id. 384; see sec. 1238, note. Intermediate orders not appealable: Sec. 1237, note.

1260. May reverse, affirm, or modify the judgment, and order new trial.

SEC. 1260. The court may reverse, affirm, or modify the judgment or order appealed from, and may set aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon such judgment or order, and may, if proper, order a new trial.

Judgment on appeal: Sec. 1258, no te. Error in instructions: Sec. 1127, note. Error in admission or rejection of evi. dence: Sec. 1102, note.

New trial: Sec. 1181, and notes. The question whether a defendant in a criminal case is entitled to a new trial, on the ground that the verdict is contrary to evidence, is one of law, and not of fact, within the meaning of the constitution, and the supreme court on appeal has therefore jurisdiction of the question: People v. Jones, 31 Cal. 565; People v. Smallman, 55 Id. 191. "Unless the evidence is so slight as that the court below would be justified in directing a verdict for defendant, we are not authorized to reverse a judgment upon

1261. New trial, where to be had.

the ground that the evidence does not sustain a verdict of guilty:" People v. Bird, 60 Id. 7, 8. If the verdict finding the accused guilty is clearly not sustained by the evidence the judg ment will be reversed: People v. Turner, 39 Id. 370. But if there is a substantial conflict in the evidence, the verdict will not be disturbed: People v. Montgomery, 53 Id. 576. If a motion for new trial is made and denied, and a bill of exceptions is prepared, settled, and signed, the bill should show that evidence was introduced tending to prove every material issue, and if it fails to show this, it will be presumed that as to such issue the verdict is contrary to the evidence: People v. Fisher, 51 Id. 319.

SEC. 1261. When a new trial is ordered, it must be directed to be had in the court of the county from which the appeal was taken.

1262. Defendant, when to be discharged on reversal of judgment.

SEC. 1262. 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.

People v. Hardisson, 61 Cal. 378, is not within this section.

1263. Judgment to be executed on affirmance.

SEC. 1263. If a judgment against the defendant is affirmed, the original judgment must be enforced.

Enforcement of judgment.-Where the judgment is affirmed and remittitur sent to the court below, no order of the appellate court is

necessary, directing the court below to enforce the judgment: People v. Dick, 39 Cal. 102.

1264. Judgment of appellate court, how entered and remitted.

SEC. 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.

Remittitur.-When a certified copy of the judgment of the supreme court is remitted to the court from which the appeal was taken, the supreme court loses all jurisdiction of the case; and all orders necessary to carry the judgment mto effect must be made by the lower court: Ex parte Jones, 41 Cal. 209. Where a remitti

tur is regularly issued, without inadvertence, the supreme court has no power to recall it: People v. Sprague, 5 Pac. C. L. J. 739. And no order of the appellate court is necessary directing the trial court to enforce the judgment: People v. Dick, 39 Cal 102.

1265. Jurisdiction of appellate court ceases after judgment remittea.

SEO. 1265. 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.

Jurisdiction, when ceases: Sec. 1264, note; People v. Bonilla, 38 Cal. 699; People v. Dick, 39 Id. 102; Ex parte Jones, 41 Id. 210.

J. Such is the well-established rule: Phelan v. San Francisco, 20 Id. 39; Blanc v. Bowman, 22 Id. 23; People v. Sprague, 5 Pac. C. L. J. Power of appellate court after remitti- 739; Noman v. Bradley, 12 Wall. 129; Legg v. tur: See also Code Civ. Proc., sec. 958. The Overtagh, 4 Wend. 188; S. C., 21 Am. Dec. jurisdiction of the appellate court is divested 115, 118, and the note thereto. The jurisdicwhen the remittitur or mandate is sent to and tion of the appellate court does not cease, howfiled in the court below, and such appellate ever, until the remittitur or mandate is filed in court has no further control over its judgment, the court below: Judson v. Gray, 17 How. Pr. unless there has been fraud, mistake, or inad- 289; Crogan v. Ruckle, 1 Cal. 193; Mateer v. vertence in the proceedings. "The supreme Brown, Id. 231. Thus where the remittitur court has no appellate jurisdiction over its own was filed in the lower court after an order had judgments; it cannot review or modify them been made granting a rehearing, the jurisdicafter the case has once passed, by the issuance tion to reconsider the cause was held not to be of a remittitur, from its control. The taken away: Grogan v. Ruckle, Id. 193. court cannot recall the case and reverse its where any irregularity, error, or inadvertence decision after the remittitur is issued. It has in granting the order upon which the remittitur determined the principles of law which shall is founded intervenes, the appellate court does govern, and having thus determined, its juris- not lose jurisdiction, and may recall the remit diction in that respect is gone. And if the new titur after it has been sent down and filed: trial is had in accordance with its decision, no Vance v. Peña, 36 Id. 328; Hanson v. McCue, error can be alleged in the action of the court 43 Id. 178; Bernal v. Wade, 46 Id. 640. below:" Leese v. Clark, 20 Cal. 417, per Field,

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1268. Admission to bail defined.

SEC. 1268. Admission to bail is the order of a competent court or magistrate that the defendant be discharged from actual custody upon bail.

Bail-The giving of bail is the procuring by defendant under arrest of sureties who undertake that he will appear when called. On the sureties executing a formal engagement to this effect the defendant is, in theory of law, delivered to the custody of the sureties, but practically is allowed to go at large. Should the sureties, however, become distrustful that he will keep his engagement, they may surrender him to judicial custody. They have the authority of jailers to take their principal into their actual custody, and to surrender him to prison: See Abbott's Law Dict., tit. Bail, secs. 1278, note, 1300, note, 1301, note.

"Bail in Criminal Cases" is the title of a valuable article by S. D. Thompson in 6 Crim. Law Mag. 1.

Bail, where taken: See sec. 1284. A pris

oner arrested for felony must, in order to procure bail, be taken before the magistrate who issued the warrant, or before some other magistrate in the same county: Ex parte Hung Sin, 54 Cal. 102.

Duty of court as to ball-The nature of proceedings in bail, and the purpose at which they aim, require that the authority and discretion of the court having jurisdiction of the offense, to admit to bail, to increase or reduce the amount of bail, etc., should be exercised whenever substantial justice would thereby be promoted: Ex parte Ryan, 44 Cal. 555. In fixing the amount of bail, the sole purpose which should guide the court or judge should be to cause the appearance of the accused to answer the charge against him: Ex parte Duncan, 54 Id. 75.

1269. Taking of bail defined.

SEC. 1269. 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.

Amount of bail.-In fixing the amount of bail, the sole purpose which should guide the court should be to cause the appearance of the accused to answer the charge against him: Ex parte Duncan, 54 Cal. 75.

Excessive bail.-Excessive bail shall not be required: Cal. Const., art. 1, sec. 6; U. S. Const., Amendment 8. In order to constitute it "excessive," it must be per se unreasonably great and clearly disproportionate to the offense involved, or the peculiar circumstances appearing must show it to be so in the particular case: Ex parte Ryan, 44 Cal. 558.

1270. Offense not bailable.


sum of one hundred and twelve thousand dollars is not excessive bail for ten distinct felonies, such being the sum alleged to have been received by the defendant by reason of the felonies: Ex parte Duncan, 53 Id. 410. Where defendant is held to answer a charge of assault with intent to commit murder, the sum of fifteen thousand dollars is not excessive bail: Ex parte Ryan, 44 Id. 555. See Ex parte McLaughlin, 41 Id. 212, 220, where the defendant in a capital case was admitted to bail by the supreme court in the sum of ten thousand dollars.

SEC. 1270. 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: Art. 1, sec. 6. Offenses not bailable.-Admission to bail in capital cases when the proof is evident or the presumption great may be made a matter of discretion, or may be forbidden by legislation: People v. Tinder, 19 Cal. 539. In all other cases admission to bail is a right of the accused, which no court can properly refuse: Id. A person charged with murder, committed by the

administration of drugs and mechanical means with intent to produce an abortion, from the effects of which death resulted, is entitled to be admitted to bail: Ex parte Wolff, 57 Id. 94; see also People v. McLaughlin, 41 Id. 212, for a capital case, where defendant was held entitled to be admitted to bail, it appearing that on the first trial the jury were unable to agree, and had been discharged without the defendant's consent. And Ex parte Troia, 64 Id. 152, where the court refused to discharge on habeas corpus with bail.

1271. In what cases defendant may be admitted to bail before conviction. SEC. 1271. If the charge is for any other offense, he may be admitted to bail before conviction, as a matter of right.

Bail as matter of right.-In all other than capital cases, and in all capital cases where the guilt is not evident or the presumption great, defendant is entitled to bail as a matter of right, which no court can properly refuse: People v. Tinder, 19 Cal. 539. The constitution, in declaring bail to be a matter of right, contemplates only those cases where the party has not been already convicted: Ex parte Voll, 41 Id. 29; sec. 1270, notes. Bail should be accepted in all cases if it will secure the presence of the defendant at the trial and sentence. The danger of escape increases in proportion to the severity of the impending punishment, and the danger of conviction, and in determining the question of accepting bail, and the amount thereof, these two elements should be taken into consideration: 1 Bish. Crim. Proc., sec. 255; People v. Cunningham, 3 Park. Cr. 520; People v. Van Horne, 8 Barb. 158. Bail, application for, what look into.-On applications for admission to bail, the law pre

sumes the defendant guilty: Ex parte Ryan, 44 Cal. 555; Ex parte Duncan, 54 Id. 75. In the determination, however, of this question, the principal consideration being the question of probable guilt, the court or judge will look into the depositions taken before the coroner and also those taken before the committing magistrate: 1 Bish. Crim. Proc., sec. 257; Rex v. Pepper, Comb. 298; Rex v. Horner, 1 Leach, 4th ed., 270; State v. Dew, Tayl. 142. But see People v. Dixon, 4 Park. Čr. 651. So the testimony of the witnesses before the grand jury may be considered on an application for bail: Ex parte Bramer, 37 Tex. 1; Street v. State, 43 Miss. 1. The mere fact that a grand jury has found an indictment for murder does not preclude the court or judge from an inquiry into the facts of the case to ascertain whether the offense may not be of such grade as to entitle the prisoner to bail: Lynch v. People, 38 Ill. 494; People v. Beigler, 3 Park. Cr. 316.

1272. In what cases he may be admitted to bail after conviction and upon appeal. SEC. 1272. After conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail:

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