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judgment is to be executed. [L. 1864; D. Cd. § 200; D. & L. § 220; H. C. § 1423.]

$ 1459. Judgment for Money in Criminal Action May be Enforced as in Civil Action.

A judgment in a criminal action, so far as it requires the payment of money, whether the same be a fine or costs and disbursements of the action, or both, in addition to the means in this chapter provided, may be enforced as a judgment in a civil action, as provided in title III of the code of civil procedure. [L. 1864; D. Cd. § 201; D. & L. § 221; H. C. § 1424.]

In the last preceding section the reference to title III is substituted for that contained in the section as enacted, which was to titles I and II of chapter III of the code of civil procedure. Title III of this compila

§ 1460.

tion comprises all of said titles I and II of chapter III, as contained in Hill's compilation, with the addition of new §§ 221 to 226, inclusive, relating to homesteads.

Sheriff's Return, how Made-To be Annexed to Roll. When a judgment in a criminal action has been executed, the sheriff or officer executing it must return to the clerk the warrant or copy of the entry of judgment upon which he acted, with a statement of his doings indorsed thereon, and the clerk must file the same and annex it to the judgment roll in the case. [L. 1864 ; D. Cd. § 202 ; D. & L. § 222 ; H. C. §1425.]

CHAPTER XIII.

OF APPEALS, WHEN ALLOWED AND HOW TAKEN.

§ 1461. Writs of Error and Certiorari Abolished.

Writs of errors and of certiorari in criminal actions are abolished, and hereafter the only mode of reviewing a judgment or order in a criminal. action is that prescribed by this chapter. [L. 1864; D. Cd. § 223; H. C. § 1426.]

The criminal code in regard to appeals is complete in itself, and, in many respects, in different from that in civil actions. When an appellant has complied with all the

§ 1462.

requirements of the statute provided for in this chapter, he has a right to be heard: State v. Ellis, 3 Or. 498.

Appeal Allowed as Provided Herein- Not Otherwise.

The party aggrieved, whether the state or the defendant, may appeal from a judgment in a criminal action in the cases prescribed in this chapter and not otherwise. [L. 1864; D. Cd. § 224; H. C. § 1427.]

The latter words of this section constitute an express limitation upon the right of appeal in criminal matters, and preclude the state from resorting to a mode of reviewing judgments and orders of the circuit court other than those enumerated in § 1465, post: State v. Minnick, 33 Or. 158, 54 Pac. 223.

An appeal from a conviction of a crime abates on the death of the defendant, and it can not be prosecuted to a final deter

mination by the personal representatives of the accused, even though the abatement leaves in force a judgment for costs, enforceable against his estate: State v. Martin, 30 Or. 108, 47 Pac. 196; Whitley v. Murphy, 5 Or. 328, 20 Am. Rep. 741.

An appeal in a criminal case does not vacate the judgment appealed from in the court below: Whitley v. Murphy, 5 Or. 328, 20 Am. Rep. 741.

§ 1463. 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. [L. 1864; D. Cd. § 225; H. C. § 1428.]

§ 1464. Defendant May Appeal, in What Case.

An appeal to the supreme court may be taken by the defendant from a judgment on a conviction in a circuit court, or from an order refusing to dismiss the indictment as provided for in section 1559; and upon an appeal, any actual decision of the court, in an intermediate order or proceeding forming a part of the judgment roll, as prescribed by section 1448, may be reviewed. [L. 1864; D. Cd. § 226; L. 1889, p. 138, § 1; H. C. § 1429.]

The topic of what are and what are not appealable orders in a criminal case is treated under this head under civil actions in the note to § 547.

§ 1465. State May Appeal, in What Case.

An appeal to the supreme court may be taken by the state from the judgment or order of the circuit court, in the following cases:

1. Upon a judgment for the defendant on a demurrer to the indictment;

2. Upon an order of the court arresting the judgment. [L. 1864; D. Cd. § 227; H. C. § 1430.]

The state can not appeal from any orders or judgments in a criminal case, except those mentioned in this section. No appeal, therefore, lies from a judgment of

acquittal, even if entered on a verdict ordered by the trial court: State v. Minnick, 33 Or. 158, 54 Pac. 223.

§ 1466. Appeal as a Matter of Right, When.

An appeal may be taken as provided in the last two sections as a matter of right. [L. 1864; D. Cd. § 228; H. C. § 1431.]

1467. Time for Appeal.

An appeal must be taken within one year after the judgment or order appealed from was given or made. [L. 1864; D. Cd. § 229; H. C. § 1432.]

§ 1468. Appeal, How Taken.

An appeal must be taken by the service of a notice, in writing, on the clerk of the court where the judgment roll is filed, stating substantially that the appellant appeals from the judgment. [L. 1864; D. Cd. § 230; H. C. § 1433.]

§ 1469. Appeal, Notice of, to District Attorney.

If the appeal be taken by the defendant, a similar notice must be served on the district attorney for the county in which the judgment roll is filed. [L. 1864 ; D. Cd. § 231 ; H. C. § 1434.]

An appeal by a defendant will be dismissed, where notice was served on the district attorney only, and not on the clerk of the court: State v. Horner, 36 Or. 68, 53 Pac. 549; State v. Blazier, 36 Or. 97, 60 Pac. 203.

A notice of appeal which states the nature of the action, the parties, the title of the court, and the sentence pronounced, is sufficient to confer jurisdiction, though it fails to designate the time when said judgment was rendered: State v. Hanlon, 32 Or. 98 48 Pac. 353.

§ 1470. Appeal, Notice of, to the Defendant.

If the appeal be taken by the state, a similar notice must be served on the defendant, if he be a resident of or imprisoned in the county; or, if not, on the counsel, if any, who appeared for him on the trial, if he reside or have an office for the transaction of business in the county. If, after due diligence, the service can not be made as herein directed, the court or judge thereof from which the appeal is sought to be taken, upon proof thereof, may make an order for the publication in such newspaper and for such time as it deems proper. [L. 1864; D. Cd. § 232; H. C. § 1435.]

This section is followed in State v. Brown, 5 Or. 119.

$ 1471. When Appeal Perfected in Case of Publication.

At the expiration of the time appointed for the publication, on filing an affidavit thereof with the clerk, the appeal becomes perfected. [L. 1864; D. Cd. § 233; H. C. § 1436.]

§ 1472. Notice of Appeal, by Whom Signed.

The notice of appeal, when the same is taken by the state, must be signed by the district attorney for the county, and when taken by the defendant must be signed by him or an attorney of the court for him. [L. 1864; D. Cd. § 234; H. C. § 1437.]

§ 1473. Effect of Appeal by State.

An appeal taken by the state, if taken within the term at which the judgment or order appealed from is given or made, stays the effect of such judgment or order in favor of the defendant, so that his bail or money deposited in lieu thereof is holden for the appearance and surrender of the defendant, until the final determination of the appeal and the proceedings consequent thereon, if any; but if the defendant be in custody, he may, in the discretion of the court, be admitted to bail, pending the appeal, on his own undertaking. [L. 1864; D. Cd. § 235; H. C. § 1438.]

§ 1474. Appeal by State Does Not Stay Judgment in Defendant's Favor.

An appeal taken by the state does not stay or affect the operation of the judgment or order in favor of the defendant until the judgment is reversed, except as provided in the last section. [L. 1864; D. Cd. § 236; H. C. § 1439.]

$ 1475. Judgment of Conviction, When Execution Stayed on Appeal.

An appeal from a judgment on a conviction stays the execution of the judgment, upon filing with the notice of appeal a certificate of the judge of the court in which the conviction was had, or of a judge of the supreme court, that in his opinion there is probable cause for the appeal, but not otherwise. [L. 1864; D. Cd. § 237; H. C. § 1440.]

An appeal does not vacate the judgment below: Whitley v. Murphy, 5 Or. 328, 20 Am. Rep. 741.

A justice of the supreme court can not certify there is probable cause for appeal in a criminal case, unless the errors relied

upon are presented in a bill of exceptions. Copies of the papers and journal entries are not sufficient to present any question not apparent on their face: Ex parte Wachline, 32 Or. 205, 51 Pac. 1094.

§ 1476. Certificate of Probable Cause, by What Judge Issued and on What Notice.

The certificate mentioned in the last section can not be granted upon an appeal from a judgment on a conviction of a felony, except by the judge of the court in which the conviction was had, until such notice as the judge may prescribe has been given to the district attorney for the county where the conviction was had, of the application for the certificate; but the judge may stay the execution of the judgment in the mean time. [L. 1864; D. Cd. § 238; H. C. § 1441.]

§ 1477.

Duty of Sheriff on Receipt of Certificate of Probable Cause.

If the certificate provided in section 1475 be given, the sheriff must, if the defendant be in his custody, upon being served with a certified copy thereof, keep the defendant in his custody, without executing the judgment, and detain him to abide the judgment upon the appeal. [L. 1864; D. Cd. § 239; H. C. § 1442.]

§ 1478. Execution Commenced is Suspended by Certificate.

If before the granting of the certificate the execution of the judgment have commenced, the further execution thereof is suspended, and the defendant must be restored by the officer in whose custody he is to his original custody. [L. 1864; D. Cd. § 240; H. C. § 1443.]

$ 1479.

Record to be Transmitted to Supreme Court, Within What Time. Upon the appeal being taken, the clerk of the court where the notice of appeal is filed must, within five days thereafter, or such further time as such court or the judge thereof may allow, transmit a certified copy of the notice of appeal, certificate of cause, if any, and judgment roll, to the clerk of the supreme court. [L. 1864; D. Cd. § 241; H. C. § 1444.]

This and § 1448 specify what the transcript shall contain. The record of the finding of an indictment is not made a part thereof by either section: State v. Reinhart, 36 Or. 472, 38 Pac. 822; State v. Abrams, 11 Or. 171, 8 Pac. 327.

The transcript as filed in the appellate court is conclusively presumed to be correct, and if there are any errors or omissions, they must be corrected by some proper proceeding before the case is heard. Where the record shows that the defend

ant was arraigned on one indictment, but was convicted on another indictment returned by the grand jury on the same day, while the only indictment appearing in the record is different from either of the other two. the court will not presume or conclude that such defects were clerical errors, but will rely implicitly on the certified record, and reverse the case for lack of any record of the proceedings: State v. McCaffrey, 26 Or. 570, 38 Pac. 932.

§ 1480. Appeal Dismissed When Substantially Irregular.

If the appeal be irregular in a substantial particular, but not otherwise, the appellate court may, on motion of the respondent and notice to the defendant, order it to be dismissed. [L. 1864; D. Cd. § 242; H. C. § 1445.]

1481. Appeal Dismissed When Proper Return Not Made.

The appellate court may also, upon like motion and notice, order the appeal to be dismissed if the return be not made as provided in section 1479, unless for good cause it retain the appeal, and require the clerk of the court below to make a further return as to any matter affecting the merits, which

appears or is alleged to be omitted from the transcript. [L. 1864; D. Cd. $243; H. C. § 1446.]

§ 1482. Nonappearance of Appellant, Judgment Affirmed as of Course.

If the appellant fail to appear in the appellate court, judgment of affirmance must be given as a matter of course; but the defendant need not personally appear in the appellate court. [L. 1864; D. Cd. § 244; H. C. § 1447.]

§ 1483. Only Questions of Law Shown by Transcript Reviewed.

Upon an appeal the judgment or order appealed from can only be reviewed as to questions of law appearing upon the transcript. [L. 1864; D. Cd. § 245 ; H. C. § 1448.]

§ 1484. Questions not Affecting Substantial Rights, not Regarded.

After hearing the appeal the court must give judgment, without regard to the decision of questions which were in the discretion of the court below, or to technical errors, defects, or exceptions which do not affect the substantial rights of the parties. [L. 1864; D. Cd. § 246; H. C. § 1449.]

JUDGMENT ON APPEAL, GENERALonly matters of law may be considered: LY.-Upon an appeal in a criminal case State v. Wilson, 6 Or. 429.

The supreme court will not consider a question which is not raised in the court below; it must be passed upon by the trial court in order to be assigned as error on appeal: State v. Robinson, 32 Or. 51, 48 Pac. 357.

Where the error relied upon on appeal appears from the judgment roll, no bill of exceptions is necessary: State v. Mack, 20 Or. 234, 25 Pac. 639.

DISCRETION.-Matters within the sound discretion of the court will not be reviewed on appeal, except for abuse. The following matters are within such discretion of the court: The ruling on a motion to set aside a verdict, and for a new trial: State v. Gardner, 33 Or. 152, 54 Pac. 809, and cases there collected; State v. Childers, 32 Or. 128, 49 Pac. 801; the ruling on an application to postpone a trial: State v. Fiester, 32 Or. 261, 50 Pac. 561; State v. Hawkins, 18 Or. 476, 23 Pac. 475; State v. O'Neil, 13 Or. 183, 9 Pac. 284; State v. Howe, 27 Or. 146, 44 Pac. 672; the ruling on a motion to amend the record of the circuit court, where the evidence in regard thereto is conflicting: State v. Lee Ping Bow, 10 Or. 29; the ruling of the trial court as to whether a witness has shown himself competent and qualified to express an opinion upon the sanity of a person: State v. Hansen, 25 Or. 395. 35 Pac. 976; the action of the court in allowing or refusing to allow a witness to be recalled for further examination after he has been fully crossexamined and excused from the stand: State v. Robinson, 32 Or. 51, 48 Pac. 357; the ruling of the court on a motion for change of venue: State v. Pomeroy, 30 Or. 17, 46 Pac. 797; the ruling of the court as to the qualifications of a person to act as juror after an examination by the court: State v. Steeves, 29 Or. 96, 43 Pac. 947; the discharge of the jury by the court for failure to agree: State v. Reinhart, 26 Or. 474, 38 Pac. 822.

HARMLESS ERROR.-The court will not reverse a cause, where it affirmatively appears from the record that the error committed could not have affected a substantial right of the appellant. The following have

been held harmless errors: The dating of an indictment on Sunday: State v. Norton, 16 Or. 106, 17 Pac. 744; the dismissal of a juror upon a challenge for cause by the attorney for the state on the ground that the juror's name did not appear upon the assessment roll, where such challenge is denied by the counsel for defendant: State v. Ching Ling, 16 Or. 421, 18 Pac. 844; State v. Harding, 16 Or. 494, 19 Pac. 449; the admission of evidence of acts or declarations of an alleged co-conspirator, without a sufficient preliminary showing of the conspiracy, where they were insufficient to connect such alleged co-conspirator with the crime: State v. Moore. 32 Or. 76, 48 Pac. 468; the admission of evidence that after the arrest of a defendant for the larceny of money his room was searched and several suits of clothes and a large number of other articles of wearing apparel were found: State v. Moore, 32 Or. 77, 48 Pac. 468; the admission of a preliminary statement made by the accused, where he subsequently testifies to the same state of facts set forth therein: State v. Hatcher, 29 Or. 312, 44 Pac. 584; the use of the word "scheme," where the witness testified that the defendant wished to steal the sheep of the prosecuting witness, and invited the witness and another person to join in the theft: State v. Welch, 33 Or. 34, 54 Pac. 213.

Error in excluding testimony is not harmless, though the witness had already testified to substantially the same thing without objection, where the ruling was made at the end of a colloquy between defendant's attorney and the court, during which the attorney stated what he expected the witness would testify and his object in offering the testimony, and the jury must have understood that the court considered the testimony entirely immaterial: State v. Marco, 32 Or. 178, 50 Pac. 799.

Though the court will not ordinarily reverse a case when it does not appear that errors committed at a trial have prejudiced the accused, yet, where the error consists in the infraction of a constitutional guarantee in favor of personal liberty, the law will presume an injury, and judge accordingly: State v. Lurch, 12 Or. 103, 6 Pac. 408.

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