TITLE IX. OF APPEALS TO THE SUPREME COURT. Chapter I. Appeals, when Allowed and How Taken, and the Effect Thereof, §§ 1235-1246. II. Dismissing an Appeal for Irregularity, §§ 1248, 1249. III. Argument of the Appeal, §§ 1252-1255. CHAPTER I. APPEALS, WHEN ALLOWED AND HOW TAKEN, AND THE EFFECT THEREOF. Appeal, by whom taken, on questions of law alone. Appeal, when may be taken by the defendant. In what cases by the people. Appeals, within what Appeal, how taken. § 1235. § 1236. § 1237. § 1238. § 1239. § 1240. § 1241. § 1242. § 1243. § 1244. § 1245. Same. time to be taken. When notice may be served by publication. Effect of an appeal by the defendant. Same. § 1246. Duty of clerks upon appeal. § 1235. alone. Appeal, by whom taken, on questions of law 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. En. February 14, 1872. Cal. Rep.Cit. 65, 645; 108, 663; 109, 279. Rep. Crim. Prac. Act, sec. 481. En. April 20, 1850. 1851, 290. En. 1851, 212. Am'd. 1858, 218; 1863, 162. Cal. Rep. Cit. 9, 86; 31, 565; 34, 308; 39, 609; 42, 624; 44, 385. Crim. Prac. Act, sec. 482. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Am'd. 1858, 218; 1866, 306 (in part). Under the present constitution the appellate jurisdiction of the supreme court in criminal cases extends to "all criminal cases prosecuted by indictment or information in a court of record": Const. Cal. 1879, art. VI, sec. 4. § 1236. Parties, how designated on appeal. The party appealing is known as the appellant, and the adverse party as the respondent, but the title of the action is not changed in consequence of the appeal. En. February 14, 1872. Crim. Prac. Act, sec. 483. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. § 1237. Appeal, when 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. En. February 14, 1872. 65, 101; 77, 309; Cal.Rep.Cit. 54, 92; 65, 100; 82, 615; 115, 161; 117, 666; 119, 2; 132, 15; 138, 33. Subd. 1119, 57. Subd. 395, 595; 119, 209; 136, 20. § 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 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; 6. From an order of the court directing the jury to find for the defendant. En. February 14, 1872. Am'd. 1880, 26; 1897, 195. Cal.Rep.Cit. 65, 70, 18; 71, 546; 107, 478; Subd. 5-114, 64. § 1239. Appeals, within what time to be taken. An ap peal from a judgment must be taken within one year after its rendition, and from an order, within sixty days after it is made. En. February 14, 1872. Cal.Rep.Cit. 53, 630; 95, 595; 105, 263; 132, 139; 136, 21. Crim. Prac. Act, sec. 485. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. § 1240. Appeal, how taken. An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered or filed, a notice stating the appeal from the same, and serving a copy thereof upon the attorney of the adverse party. En. February 14, 1872. Cal.Rep.Cit. 49, 455; 56, 120; 62, 482; 66, 11; 70, 34; 77, 309; 119, 669. Crim. Prac. Act, sec. 486. 1851, 290. En. 1851, 212. En. April 20, 1850. Rep. § 1241. When notice may be served by publication. If personal service of the notice cannot be made, the judge of the court in which the action was tried, upon proof thereof, may make an order for the publication of the notice in some newspaper, for a period not exceeding thirty days; such publication is equivalent to personal service. En. February 14, 1872. Cal. Rep.Cit. 49, 455. Crim. Prac. Act, sec. 489. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. § 1242. Effect of an appeal by the people. An appeal taken by the people in no case stays or affects the operation of a judgment in favor of the defendant, until judgment is reversed. En. February 14, 1872. Crim. Prac. Act, sec. 490. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. § 1243. Effect of an appeal by the defendant. 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. En. February 14, 1872. Am'd. 1873-4, 450. Cal.Rep. Cit. 45, 305; 49, 682; 68, 180; 81, 164; 81, 166; 95, 596; 96, 596; 96, 597; 104, 401; 119, 129; 119, 209; 125, 252; 135, 60. Crim. Prac. Act, sec. 491. 1851, 290. En. 1851, 212. Cal. Rep.Cit. 32, 43. En. April 20, 1850. Rep. $ 1244. Same. 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. En. February 14, 1872. § 1245. Same. 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. En. February 14, 1872. § 1246. Duty of clerks upon appeal. 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. En. February 14, 1872. Am'd. 1880, 9; 1889, 325. Cal.Rep.Cit. 49, 649; 84, 582; 115, 167; 120, 554. Crim. Prac. Act, sec. 492. En. April 20, 1850. 1851, 290. En. 1851, 212. Am'd. 1862, 536: Rep. CHAPTER II. DISMISSING AN APPEAL FOR IRREGULARITY. § 1248. § 1249. § 1248. For what irregularity, and how dismissed. 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. En. February 14, 1872. Am'd. 1880, 10. Cal.Rep.Cit. 69, 238; 95, 595; 132, 139. Crim. Prac. Act, sec. 493. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. 1249. Dismissal 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 one thousand two hundred and forty-six, unless for good cause they enlarge the time for that purpose. En. February 14, 1872. Crim. Prac. Act, sec. 494. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. |