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the clerk of the court in which the convict was sentenced, and cause such convict to be returned to the custody of the sheriff of the county whence he came, etc., there to be dealt with according to law. (3 R. S., 7th ed., 1905.)

When day of execution has passed, convict to be brought up by warrant.]-Whenever, for any reason, other than insanity or pregnancy, a defendant, sentenced to the punishment of death, has not been executed pursuant to the sentence, at the time specified thereby, and the sentence or the judgment inflicting the punishment stands in full force, the supreme court, or a justice thereof, upon application by the attorney-general, or of the district attorney of the county where the conviction was had, must make an order, directed to the sheriff, commanding him to bring the convict before a general term of the supreme court in the department, or a term of a court of oyer and terminer in the county, where the conviction was had. If the defendant be at large, a warrant may be issued by the supreme court, or a justice thereof, directing any sheriff or other officer to bring the defendant before the supreme court at a general term thereof, or before a term of the court of oyer and terminer in that county. (Code Cr. Pro., § 503.)

Court to inquire, etc.; when to direct execution.]- Upon the defendant being brought before the court, it must inquire into the circumstances, and if no legal reason exist against the execution of the sentence, it must issue its warrant to the sheriff of the proper county, under the hands of the judge or judges, or of a majority of them, of whom the judge presiding must be one, commanding the sheriff to do execution of the sentence, upon a day appointed therein. The warrant must be obeyed by the sheriff accordingly. (Id., § 504.)

Death penalty; mode of infliction.]-The punishment of death must in every case be inflicted by hanging the convict by the neck until he is dead. (Id., § 505.)

Where inflicted.] - The punishment of death must be inflicted within the walls of the prison of the county in which the conviction of the person sentenced took place, or within a yard or inclosure adjoining thereto. For the purposes of this section, the "prison" is defined to be the jail appointed by law for the confinement of convicts awaiting execution of their sentence. (Id., § 506.)

Who to be present.]—It is the duty of the sheriff or undersheriff of the county to be present at the execution, and to invite the presence, by at least three days' previous notice, of the county judge, district attorney, clerk and surrogate of the county, together with two physicians, and twelve reputable citizens of full age, to be selected by the sheriff or under-sheriff. The sheriff or under-sheriff must, at the request of the criminal, permit such ministers of the gospel, priests or clergymen of any religious denomination, not exceeding two, and such of the immediate relatives of the convict as he desires, being of full age, to be present at the execution; and such officers of the prison, deputysheriffs, and constables or marshals must attend, as the sheriff or undersheriff deems expedient to have present. Besides the persons designated in this section, no one shall be permitted to be present at the execution. (Id., § 507.)

Certificate after execution.]-The sheriff or under-sheriff attending the execution must prepare and sign a certificate, setting forth the time and place thereof, and that the convict was then and there executed, in conformity to the sentence of the court, and the provisions of this Code and must procure the certificate to be signed by the county judge, surrogate and district attorney, if they were present, and by the physicians and citizens selected by the sheriff who witnessed the execution. He must cause the certificate to be filed in the office of the clerk of the county. (Id., § 508.)

When inflicted by sheriff in an adjoining county.-If in any county there is not a county jail for the confinement of criminal prisoners, or the jail has become unfit or unsafe for the confinement of prisoners, or is destroyed by fire or otherwise, and the county judge of the county has, according to law, designated the jail of a contiguous county for the confinement of the prisoners of the county, the sheriff of the county in which a convict sentenced to death is confined must attend, upon the day appointed for the execution of the sentence, at the jail of his county, and there conduct the proceedings and execute the sentence, in all respects as if the jail were situated in the county where the conviction took place. (Id., § 509.)

If female convict is pregnant, sheriff to impanel jury of physicians.]-If there is reasonable ground to believe that a female defendant, sentenced to the punishment of death, is pregnant, the sheriff of the county where the conviction took place must impanel a jury of six physicians to inquire into her pregnancy. Sections 497 and 498 of this Code apply to the proceedings upon the inquisition, except that the sheriff may, in his discretion, require one or more of the physicians composing the jury to attend from an adjoining county. A physician, acting as a juror upon such an inquisition, need not be qualified to serve as a juror in a court of record. (Id., § 500.)

Inquisition; suspension of execution.]- The inquisition of the jury must be signed by the jurors and the sheriff. If it is found. by the inquisition that the defendant is quick with child, the sheriff must suspend the execution of the warrant directing her execution, until he receives a warrant from the governor, directing that the convict be executed. (Id., § 501.)

Sheriff to transmit inquisition to governor; governor's duty.]-The sheriff must immediately transmit the inquisition to the governor, who, as soon as he is satisfied that the defendant is no longer quick with child, may issue his warrant, appointing a time and place for her execution, pursuant to her sentence, or may commute her punishment to imprisonment for life. (Id., § 502.)

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By the Code of Criminal Procedure, writs of error, and of certio rari, in criminal actions, are abolished; and hereafter the only mode of reviewing a judgment or order, in a criminal action. is by appeal. (§ 515.)

The entire article of the Revised Statutes, relating to those writs, is superseded thereby, and is no longer applicable.

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CHAPTER I.

WHEN ALLOWED; AND HOW TAKEN; TO WHAT COURTS.

1. Who may appeal.

Defendant.] An appeal to the supreme court may be taken by the defendant, from the judgment on a conviction after indictment, and upon the appeal, any actual decision of the court in an intermediate order or proceeding forming a part of the judgment roll, as prescribed by section 485, may be reviewed. (Code Cr. Pro., § 517.)

Supreme court has no jurisdiction on appeal except as given by statutes. Shufflin v. Peo., 4 Hun, 16.

People.] An appeal to the supreme court may be taken by the people, in the following cases, and no other :

1. Upon a judgment for the defendant, on a demurrer to the indict

ment.

2. Upon an order of the court arresting the judgment. (§ 518.) A new trial can not be granted, when defendant has been acquitted of a felony. Peo. v. Comstock, 8 Wend., 549. See Peo. v. Corning, 2 N. Y., 9.

2. Parties; how designated.

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. (§ 516.)

3. In what cases, generally.

An appeal may be taken from the judgment of the supreme court to the court of appeals, in the following cases, and no other:

1. From a judgment affirming or reversing a judgment of convic

tion.

2. From a judgment affirming or reversing a judgment for the defendant, on a demurrer to the indictment, or on an order to the court arresting the judgment.

3. From a final determination affecting the substantial rights of a defendant. (§ 519.)

Are preferred causes. Rule 11, Ct. App., and first in order. Rule 20, id.

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