CHAPTER IV.

JUDGMENT UPON.

Technical errors or defects; exceptions.] 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. (Code Cr. Pro., § 542.)

Illegal evidence which may have prejudiced the prisoner is ground for new trial. Lambert . Peo., 6 Abb. N. C., 181. See Cox v. Peo., 80 N. Y., 500. Must be exception to bring up questions for review. Brotherton v. Peo., 75 N. Y., 159. See Lattimer v. Hill, 8 Hun, 171; Clute v. Emmerick, 12 ib., 504.

Nature of; when new trial ordered.] Upon hearing the appeal, the appellate court may, in cases where an erroneous judgment has been entered upon a lawful verdict, correct the judgment to conform to the verdict; in all other cases they must either reverse or affirm the judgment appealed from, and in cases of reversal, may, if necessary or proper, order a new trial. (§ 543.)

When a new trial is ordered, it shall proceed in all respects as if no trial had been had. (§ 544.)

Reversal of conviction.] If a judgment against the defendant be reversed, without ordering a new trial, the appellate court must direct, if he be in custody, that he be discharged therefrom, or if he be admitted to bail, that his bail be exonerated, or if money be deposited instead of bail, that it be refunded to the defendant. (§ 545.)

Affirmance of conviction.] On a judgment of affirmance against the defendant, the original judgment must be carried into execution, as the appellate court may direct; and if the defendant be at large, a bench warrant may be issued for his arrest. If a judgment be corrected, the corrected judgment must be carried into execution as the appellate court may direct. (§ 546, as amended in 1882.)

Judgment, how entered and remitted.] When the judgment of the appellate court is given, it must be entered in the judgment book, and a certified copy of the entry forthwith remitted to the clerk with whom the original judgment roll is filed, or if a new trial be ordered

in another county, to the clerk of that county, unless the judgment be rendered in the absence of the adverse party, in which case, the court may direct it to be retained, not exceeding ten days. (§ 547.) Papers on appeal, to remain of record.] The papers returned to the appellate court must there remain of record, and are not to be remitted to the court below. (§ 548.)

When jurisdiction of appellate court ceases.] After the certificate of the judgment has been remitted as provided in section 547, the appellate court has no further jurisdiction of the appeal, or of the proceedings thereon; and all orders, which may be necessary to carry the judgment into effect, must be made by the court to which the certificate is remitted, or by any court to which the cause may thereafter be removed. (§ 549.)

BAIL upon appeal. See BAIL; INDICTMENT; Code Cr. Pro., §§ 554, 556, 583, 584, 585.

APPEALS to court of sessions, from courts of special sessions. See SPECIAL SESSIONS; Code Cr. Pro., §§ 749 to 772.

APPEALS in bastardy cases. Sec BASTARDY; Code Cr. Pro., §§ 861 to 880.

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UNDER this title the general rules and principles, only, of evidence will be treated of. The evidence applicable to each particular species of offense will be found stated under its appropriate head, in connection with each offense remarked upon in this work. It may be here to premise, that the rules of evidence in criminal cases are, in most respects, the same as in civil cases. The chief distinction which prevails will be found to originate in that caution which is always observed when life or liberty is in question, and in those benign presumptions with which the law meets every accusation involving moral turpitude. (a)

The subject will be considered in the following order:

I. GENERAL RULES OF EVIDENCE; AND WHAT ALLEGATIONS MUST BE PROVED.

II. WRITTEN EVIDENCE.

1. Public documents and records

2. Private documents.

III. PAROL EVIDENCE.

1. In what cases admissible.

2. Competency of witnesses.

3. Credibility of witnesses.

4. Examination of witnesses.

5. Compelling attendance of witnesses.
6. Their fees and expenses.

7. Privileges of witnesses from arrest.

IV. SECONDARY EVIDENCE.

V. PRESUMPTIVE EVIDENCE.

VI. HEARSAY EVIDENCE.

VII. CONFESSIONS.

(a) See Cowen & Hill's Notes, 419. 3 Day, 283. 2 Hale's P. C., 193.

GENERAL RULES OF EVIDENCE, AND WHAT ALLEGATIONS MUST BE PROVED.

THE first general rule respecting evidence, whether in civil or criminal cases, which we shall notice, is that the best evidence must be given of which the nature of the thing is capable. (b) (1) That is, no evidence but the best in degree that is in the party's power or possession shall be admitted. Thus, if he offer a copy of a deed or will when he can produce the original, it raises a presumption that the original contains something which, if produced, would make against him. Therefore a copy in such case is not evidence. But if the original be in the hands of the adverse party, who refuses to produce it, on notice, or if it be lost or destroyed without his fault, a copy will be admitted, for it is then the best evidence in his power. (c)

30.

(b) Gilb. Ev., 13. Bull. N. P., 293. 9 Cowen,

(c) Matt. Dig., 120. Bull. N. P., 293. 8 Barn. & Cress., 708.

(1) Rules of evidence.]—The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code. (Code Cr. Pro., § 392.)

Knowledge of juror.]—If a juror have any personal knowledge, respecting a fact in controversy in a cause, he must declare it in open court, during the trial. If, during the retirement of the jury, a juror declare a fact, which could be evidence in the cause, as of his own knowledge, the jury must return into court. In either of these cases, the juror making the statement must be sworn as a witness, and examined in the presence of the parties. (Id., § 413.)

View of premises.]-When, in the opinion of the court, it is proper that the jury should view the place in which the crime is charged to have been committed, or in which any material fact occurred, it may order the jury to be conducted, in a body, under charge of proper officers, to the place, which must be shown to them by a judge of the court, or by a person appointed by the court for that purpose. (Id., § 411.)

Jury receiving evidence out of court.]—When the jury has received any evidence out of court, other than that resulting from a view, as provided in section 411, by which the substantial rights of the defendant have been prejudiced, this will be ground for a new trial, upon his application. (§ 465.)

It is the duty of a jury to find a verdict upon the evidence given on the trial, and upon that alone, without any addition to it or modification of it, arising out of the peculiar scientific acquirements or actual knowledge of facts in controversy, possessed by the jurors, or any of them; though the weight and credit of such evidence should be judged of by them in the light of their own experience. (People v. Zeiger, 6 Park., 355.)