Legislation § 1247. 1. Added by Stats. 1909, p. 1084 and then read: "Upon any appeal being taken from any judgment or order of the superior court to the supreme court, or a district court of appeal, in any criminal proceedings, where such appeal is allowed by law, the defendant or the district attorney when the people appeal, may within two days file with the clerk and present an application to the trial court, stating in general terms the ground of the appeal, and the points upon which the appellant relies, and designate what portion of the phonographic reporter's notes it will be necessary to have transcribed to fairly present the points relied upon, and ask the court to make an order for the transcription thereof. The court shall, within one day after the filing of such application, make an order directing the phonographic reporter who reported the case, to transcribe such portion of his notes as in the opinion of the court may be necessary to fairly and fully present the points relied upon by the appellant. Where one of the grounds stated in the application is the insufficiency of the evidence to sustain the conviction, the court shall direct all the evidence to be transcribed, unless it is stipulated that some portion of the evidence shall be omitted. If the court fails to make the order within one day after the application is presented, an order shall be deemed to be given and made for the portion of the notes requested in the application. The phonographic reporter shall, within twenty days after the making of such application, file with the clerk of the court an original transcription of the portion of his notes ordered transcribed, excluding therefrom all argument of counsel not objected to at the time the same was made, typewritten, and three carbon copies thereof. The original and each copy shall be duly certified by him under oath to be correct."

2. Amended by Stats. 1911, p. 692.

§ 1247a. Duty of clerk to deliver copies to parties. Proposed corrections. Upon the transcribed notes being filed by the reporter with the clerk, it shall be the duty of the clerk forthwith to immediately deliver upon demand one of the carbon copies to the defendant or his attorney, the other carbon copy upon demand to the district attorney, and deliver the original, with the date of the several deliveries of the original and the copies, if delivery has been made, indorsed upon the original, to the court for its approval. Unless objection is made thereto by either the defendant or his attorney or the district attorney, within ten days after the receipt thereof, the judge shall certify thereon that no objection has been made thereto within the cime allowed by law; and after so certifying shall immediately redeliver the same to the clerk. The defendant or his attorney or the district attorney may file with the clerk a proposed correction of the transcribed proceedings within ten days after the filing of the transcribed proceedings. The court must immediately hear and determine the objection; if in the opinion of the court the transcription of the proceedings is not correct, the court must correct the same. When so corrected he must certify thereon that all objections made thereto have been heard and determined, and

the same corrected in accordance with such determination; and thereupon immediately redeliver the same to the clerk. When the original transcription of the proceedings so certified by the judge has been received by the clerk from the judge, he must immediately transmit the same to the court to which the appeal was taken, and thereupon it shall become a part of the record upon appeal and he must immediately transmit to the attorney-general a carbon copy thereof with any and all corrections made to the original notes thereon.

Legislation § 1247a. Added by Stats. 1909, p. 1085.

§ 1247b. When appellant shall transcribe. If a transcription of the phonographic reporter's notes cannot be obtained, by reason of his illness or death, the appellant shall cause to be prepared and filed, in the place thereof, a transcription of such of the proceedings as was by the court ordered to be transcribed by the phonographic reporter. Such transcription must be filed within the time and in the manner provided for the filing of the phonographic re porter's transcribed notes. Upon such filing by the appellant, the same proceedings shall be had and taken as is provided in section twelve hundred and forty-seven a of this code, upon the filing the phonographic reporter's transcribed notes.

Legislation § 1247b. Added by Stats. 1909, p. 1085.

§ 1247c. Further transcription. Upon suggestion to the appellate court wherein an appeal in a criminal case is pending, that a further transcription of the proceedings is necessary, if in the opinion of the court it is necessary to have a further transcription of the proceedings in the trial court, it may order the same to be transcribed by the phonographic reporter within a time fixed in the order; provided that no further transcription shall be ordered upon the suggestion of the appellant unless the application therefor was included in the original application made to the trial court. There shall thereupon be transcribed the portion so ordered, and copies filed with the clerk of the superior court in the same manner and with like force and effect as though included in the original order of the court; and like proceedings shall be had and taken as provided by law, as in case of the original.

Legislation § 1247c. Added by Stats. 1909, p. 1085.

§ 1247d. Time cannot be extended by trial court. The time within which the phonographic reporter shall transcribe and file his notes or the appellant shall file a transcription

of the proceedings as provided in section twelve hundred and forty-seven b of this code cannot be extended by the judge of the court or by the court in which the case was tried. Upon affidavit showing good cause therefor, the court in which the appeal is pending may extend the time not exceeding sixty days.

Legislation § 1247d. Added by Stats. 1909, p. 1086.

§ 1247e. Printing in criminal cases. No printing of any record on appeal or briefs in a criminal case shall be required or ordered.

Legislation § 1247e. Added by Stats. 1909, p. 1086.

CHAPTER II.

Dismissing an Appeal for Irregularity.

§ 1248. For what irregularity, and how dismissed.
§ 1249. Dismissed for want of a return.

§ 1248. For what irregularity, and how dismissed. 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. [Amendment approved 1880; Code Amdts. 1880, p. 10.]

Legislation § 1248.

1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 533); in substance the same as Crim. Prac. Act, Stats. 1851, p. 266, § 493.

2. Amended by Code Amdts. 1880, p. 10, omitting “in term❞ after "on any day."

§ 1249. Dismissed for want of a return. The court may also, upon like motion, dismiss the appeal, if the return is not made as provided in section twelve hundred and fortysix, unless for good cause they enlarge the time for that purpose.

Legislation § 1249. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 534); in substance the same as Crim. Prac. Act, Stats. 1851, p. 266, § 494.

CHAPTER III.

Argument of the Appeal.

§ 1252. Appeals, when to be heard and determined.

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

§ 1254.
§ 1255. Defendant need not be present.

Number of counsel to be heard.

§ 1252. Appeals, when to be heard and determined. 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 1880; Code Amdts. 1880, p. 10.]

Legislation § 1252. 1. Enacted February 14, 1872 (in substance the same as Crim. Prac. Act, Stats. 1851, p. 266, § 495, and then read: "1252. All appeals in criminal cases must be heard and determined at the first term of the appellate court after the record is filed."

2. Amended by Code Amdts. 1880, p. 10.

§ 1253. Judgment may be affirmed, but cannot be reversed without argument. The judgment may be affirmed if the appellant fail to appear, but can be reversed only after argument, though the respondent fail to appear.

Legislation § 1253. Enacted February 14, 1872; based on Crim. Prac. Act, Stats. 1851, p. 267, § 496, which read: "§ 496. Judgment of affirmance may be granted without argument, if the appellant fail to appear. But judgment of reversal can only be given upon argument, though the respondent fail to appear."

§ 1254. Number of counsel to be heard. 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.

Legislation § 1254. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 540); in substance the same as Crim. Prac. Act, § 497, as amended by Stats. 1854, Kerr ed. p. 170, Redding ed. p. 81, § 5. § 1255. Defendant need not be present. The defendant need not personally appear in the appellate court.

Legislation § 1255. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 541); based on Crim. Prac. Act, § 498, as amended by Stats. 1863, p. 162, § 20, which read: "§ 498. The defendant need not appear in the appellate court, except when a new trial has been granted in the county court, and his personal presence is necessary for the purpose of identification."

§ 1258. $1259. § 1260.

§ 1261.

CHAPTER IV.

Judgment upon Appeal.

Court to give judgment without regard to technical errors.
Appellate court may review what.

May reverse, affirm, or modify the judgment, and order new

trial.

New trial, where to be had.

§ 1262. Defendant, when to be discharged on reversal of judgment. $1263. Judgment to be executed on affirmance.

$1264. Judgment upon appeal, how entered and remitted.

§ 1265. Jurisdiction of appellate court ceases after judgment remitted.

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

Errors not affecting substantial rights: See ante, § 960; post, § 1404.

Legislation § 1258. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 542); in substance the same as Crim. Prae. Act, Stats. 1851, p. 267, § 499.

§ 1259. Appellate court may review what. Upon an appeal taken by the defendant in open court, the appellate court may, without exception having been taken in the trial court, review any question of law involved in any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant. The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby. [Amendment approved 1909; Stats. 1909, p. 1088.]

Errors not affecting substantial rights, not material: See ante, § 960; post, § 1404.

Legislation § 1259. Enacted February 14, 1872; based on Crim. Prac. Act, Stats. 1851, p. 265, § 484, which read: "§ 484. Upon the appeal, any decision of the court in an intermediate order or proceeding, forming a part of the record, may be revised." When enacted in 1872, § 1259 read: "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."

2. Amended by Stats. 1909, p. 1088.

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

Legislation § 1260. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 543); based, on Crim. Prac. Act, Stats. 1851, p. 267, § 500, which read: "§ 500. The appellate court may reverse, affirm, or modify the judgment appealed from, and may, if necessary or proper, order a new trial."

§ 1261. New trial, where to be had. 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.

Legislation § 1261. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 544); in exact language of Crim. Prac. Act, Stats. 1851, p. 267, § 501.