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§ 1485. What Order Appellate Court May Make.

The appellate court may reverse, affirm, or modify the judgment or order appealed from, and must, if necessary or proper, order a new trial. [L. 1864; D. Cd. §247; H. C. § 1450.]

§ 1486. New Trial, Where Had When a new trial is ordered, it must be directed to be had in the court below; and if a judgment against a 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. [L. 1864; D. Cd. § 248; H. C. § 1451.]

Proceedings on Reversal Without New Trial.

§ 1487. Judgment to be Entered and Remitted to Court Below.

When the judgment of the appellate court is given, it must be entered in its journal, and a certified copy of the entry forthwith remitted to the clerk of the court below. [L. 1864; D. Cd. § 249; H. C. § 1452.]

§ 1488. Appellate Judgment Enforced as that of Lower Court.

Upon the receipt of such certified copy, the clerk must enter the same in the journal of the court below, and thereafter such judgment must be enforced, without any further proceedings, unless the appellate court so direct, as a judgment of the court below. [L. 1864; D. Cd. § 250; H. C. $ 1453.]

§ 1489. When new Trial Ordered, Cause Deemed Pending in Lower Court. If, by the judgment of the appellate court, a new trial is ordered from the entry of the judgment in the court below, the action is to be deemed pending and for trial in such court, according to the directions of the appellate court. [L. 1864; D. Cd. § 251; H. C. § 1454.]

On remanding a cause for a new trial after reversal, the court has power to direct the manner of such trial, in order to prevent error, if possible, and to save the cost of a third trial: State v. Steeves, 29 Or. 111, 43 Pac. 947.

§ 1490.

Copy of Appellate Judgment Annexed to Original Roll
Remains in Appellate Court.

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The transcript returned to the appellate court must there remain of record, and is not to be remitted to the court below. After entry thereof, the certified copy of the judgment of the appellate court must be annexed to the original judgment roll. [L. 1864; D. Cd. § 252; H. C. § 1455.]

§ 1491. When Jurisdiction of Appellate Court Ceases.

After the certified copy of the judgment has been remitted, as provided in section 1487, 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 certified copy is remitted. [L. 1864; D. Cd. § 253; H. C. § 1456.]

CHAPTER XIV.

OF BAIL AND FORFEITURE THEREOF.

§ 1492. Admission to Bail Defined.

Admission to bail is the order of a competent court or magistrate that the defendant be discharged from actual custody upon bail. [L. 1864; D. Cd. § 254; H. C. §1457.]

§ 1493. Taking Bail Defined.

The taking of bail consists in the acceptance by a competent court or magistrate of the undertaking of sufficient bail for the appearance of defendant, according to the terms of the undertaking, or that the bail will pay to the state a specified sum of money. [L. 1864; D. Cd. § 255; H. C. § 1458.]

A statutory undertaking for bail is not a recognizance. It is simply a promise to pay money on certain conditions: State v. Hays, 2 Ör. 314. Such an instrument is simply a contract between the parties signing it and the state: Whitney v. Darrow, 5 Or. 444.

An undertaking differs materially from a recognizance. In the former the defendant must appear and abide the order of the court or pay, as may be directed; while in the latter the recognizor acknowledges himself indebted in a certain sum, to be paid if he fails to do some act. To work a discharge in the former case the defendant must appear and abide the order of court, while in the latter the recognizor must do the act: State v. Crane, 15 Or. 148, 13 Pac. 773.

In Colvig v. Klamath County, 16 Or. 244, 19 Pac. 86, it is stated that under the code a bail bond in a criminal case is designed to serve the same purpose as, and is, in effect, like, a recognizance at common law. A recognizance is an obligation of record, entered into before a court, or officer duly authorized for that purpose, with the condition to do some act required by law, which is therein specified. When forfeited, it is made absolute, and some of the authorities decide that it has the force and effect of a judgment.

When a defendant has been admitted to

bail after being indicted, a resubmission of the matter to the grand jury, unless, perhaps, to remedy a mere formal defect, without the defendant's consent, or upon motion or demurrer of defendant, releases the surety on the bond: Hyde v. Cross, 25 Or. 543, 37 Pac. 59.

In a civil action upon an undertaking in the nature of bail for defendant's appearance in a criminal case, the complaint should show that the prisoner was charged with a crime, and it is not sufficient to state that he was charged with "shooting and killing" another: Hannah v. Wells, 4 Or. 249.

In an undertaking, where the obligor has bound himself in the sum of "five hundred," but omitted to use the word "dollars," it is held, that the undertaking must be construed in connection with the statute which authorized it; that the omitted words may be supplied, and the instrument read as though it had been expressed: Whitney v. Darrow, 5 Or. 442.

Where, after appeal from a judgment rendered on an undertaking of bail in a criminal action, and pending its determination, property of a surety was sold to satisfy such judgment, and the money paid to the county, and the judgment was subsequently reversed, the county is liable for the restitution of the money so collected: Metschan v. Grant County, 36 Or. 117, 58 Pac. 80.

$ 1494. Defendant, when can not be Admitted to Bail.

The defendant can not be admitted to bail when the proof or presumption of his guilt is evident or strong, and when he is charged with the crime of murder in any degree, or treason, or with the infliction of a personal injury upon another, likely to produce death, and under such circumstances as that, if death ensue, the offense would be murder in any degree. [L. 1864; D. Cd. §256; H. C. §1459.]

$1195. Bail as a Matter of Right, Before Conviction.

If the charge be for any other crime than those mentioned in the last section, the defendant, before conviction, is entitled to be admitted to bail, as a matter of right. [L. 1864; D. Cd. § 257; H. C. § 1460.]

§ 1496. Bail after Conviction, when a Matter of Right, when Matter of Discretion.

After judgment of conviction of a crme, other than those mentioned in section 1494, a defendant who has appealed, and when there is a stay of proceedings, and not otherwise, may be admitted to bail as a matter of right; and as a matter of discretion, a defendant may be admitted to bail for his appearance from day to day before the magistrate, on the examination of the charge, before being held to answer, or discharged. [L. 1864; D. Cd. § 258; H. C. § 1461.]

§ 1497. Who May Admit to Bail and Take Bail.

A magistrate authorized to issue a warrant of arrest, as provided in sections 1582 and 1583, is a magistrate authorized, within his jurisdiction, to admit to bail, and to take bail, except as in this chapter otherwise provided. [L. 1864; D. Cd. § 259; H. C. §1462.]

$ 1498. Admission to Bail, when only Allowed on Order of Court.

After an indictment found, and upon an appeal, a defendant can not be admitted to bail except by the court or judge thereof where the action is pending, or in which the judgment appealed from is given. [L. 1864; D. Cd. § 260; H. C. § 1463.]

This section does not impair the power of any officer designated by the United States statutes (Rev. Stat. § 1014,) to admit a defendant to bail after indictment and before trial: United States v. Dunbar, 83 Fed. 151.

§ 1499. Order for Admission to Bail, how Made.

If an application to be admitted to bail be made to a court, an order must be made granting or denying it; and if it be granted, stating the sum in which the bail may be taken; but if the application be made to a magistrate, he must certify in writing his decision granting or denying the same, and if he grant it, stating the sum in which bail may be taken. [L. 1864; D. Cd. § 261; H. C. § 1464.]

$1500. Application, when Denied, can not be Made to Another Magistrate.

If an application for admission to bail be denied, no subsequent application therefor can be made to another magistrate, and a violation of this section may be punished as a contempt. [L. 1864; D. Cd. § 262; H. C. § 1465.]

§ 1501. Admission to Bail in Such Cases May be Revoked or Vacated.

The admission to bail contrary to the last section may be revoked by the magistrate who made it, or vacated by the court or judge thereof in which the defendant is triable for the crime charged. [L. 1864; D. Cd. § 263; H. C. § 1466.]

§ 1502. Appeal from Decision Denying Admission to Bail.

If the application for admission to bail, when made to a magistrate,

other than a justice of the supreme court, be denied, the defendant may appeal from the decision to the court or judge thereof in which the defendant is triable for the crime charged. [L. 1864; D. Cd. § 264; H. C. § 1467.]

§ 1503. Manner of Taking Such Appeal.

Such appeal is taken by a notice to the district attorney, that the defendant appeals from the decision of the magistrate, and that he will apply to the court or judge thereof (naming it or him), to be admitted to bail at a time and place therein specified, the former not less than three days from the service of such notice. [L. 1864; D. Cd. § 265; H. C. § 1468.]

$1504. Decision as to Bail is Final.

The decision of the court or judge thereof, granting or denying bail, either upon an original application or upon an appeal, is final. [L. 1864; D. Cd. § 266; H. C. § 1469.]

$ 1505. Bail, how put in - Form Of.

Bail is put in by a written undertaking, executed by two sufficient sureties, and acknowledged before the court or magistrate taking the same. It may be substantially in the following form:

1. Before indictment:

day of

19—, by

"An order having been made on the A. B. (adding his official title and place of jurisdiction), that C. D. be held to answer upon a charge of (stating briefly the nature of the crime), upon which he has been duly admitted to bail in the sum of dollars,

"We, E. F. of (stating his place of residence and occupation), and G. H. of (stating his place of residence and occupation), hereby undertake that the above-named C. D. shall appear and answer the charge above mentioned, in whatever court it may be prosecuted, and shall at all times render himself amenable to the orders and process of the court; and if convicted, shall appear for judgment, and render himself in execution thereof; or, if he fail to perform either of those conditions, that we will pay to the State of Oregon the sum of dollars" (inserting the sum in which the

defendant is admitted to bail).

day of charging A. B. with the

2. After indictment and before judgment:"An indictment having been found on the 19-, in the circuit court for the county of crime of (designating it generally), and he having been duly admitted to bail in the sum of dollars" (the remainder of the undertaking may be in the words of the form number one, substituting the word "indictment" for the word "charge").

3. Upon an appeal:-

"A judgment having been given on the

day of

whereby

A. B. was condemned to (setting forth the terms of the judgment generally), and he having appealed from said judgment and been duly admitted to bail in the sum of

dollars,

"We, C. D. of (stating his place of residence and occupation), and

E. F. of (stating his place of residence and occupation), hereby undertake that the above-named A. B. shall in all respects abide and perform the orders and judgments of the appellate court upon the appeal, or if he fail to do so in any particular, that we will pay to the State of Oregon the sum of dollars" (inserting the sum in which the defendant is admitted to bail). [L. 1864; D. Cd. § 267; H. C. §1470.]

An undertaking of bail taken before a magistrate upon a criminal examination must state briefly the nature of the crime charged, or it will be invalid; thus, an undertaking which describes the offense which the defendant must appear and answer as "abortion" fails to describe any offense made punishable by the laws of this state: Belt v. Spaulding, 17 Or. 130, 20 Pac. 827.

If the crime charged be one which has a technical name, it will be sufficient to indicate the charge by such general name; if not, enough must be stated in the undertaking to describe briefly some crime made punishable by the laws of this state: Belt v. Spaulding, 17 Or. 130, 20 Pac. 827.

A statement that the defendant "conspired to defraud the United States" is

§ 1506. Undertaking, How Executed.

a sufficient statement of his crime to satisfy the statute as to undertaking of bail: United States v. Dunbar, 83 Fed. 151.

So, a statement that defendant "unlawfully aided and abetted the landing of Chinese laborers in the United States," is a sufficient statement for the undertaking of bail: United States v. Dunbar, 83 Fed. 151. A bail bond in the form provided by this section for an undertaking after commitment and before indictment, taken by a committing magistrate prior to the adjournment of the examination, does not require defendant to appear before such magistrate for examination at the time to which adjournment is taken, and failure to do so is no breach: State v. Gardner, 29 Or. 257, 45 Pac. 753.

The undertaking must be dated and signed by the sureties, in the presence of the magistrate taking the bail, and he must append thereto a certificate signed by him, with his name of office, and substantially in the following form: "Taken and acknowledged before me the day and year above written." [L. 1864; D. Cd. § 268; H. C. § 1471.]

$1507. Qualifications of Bail.

The qualifications of bail are as follows:

1. Each of them must be a resident and a householder or freeholder within the state; but no counselor or attorney, sheriff, clerk of any court, or other officer of any court, is qualified to be bail;

2. They must each be worth the sum specified in the undertaking, exclusive of property exempt from execution, and over and above all just debts and liabilities; but the court or magistrate, on taking the bail, may allow more than two bail to justify severally in amounts less than that expressed in the undertaking, if the whole justification be equivalent to that of two sufficient bail. [L. 1864; D. Cd. § 269; H. C. § 1472.]

1508. Bail Must Justify.

The bail must in all cases justify by affidavit; and the affidavit must state that they each possess the qualifications prescribed by section 1507. [L. 1864; D. Cd. § 270; H. C. §1473.]

1509. Bail May be Examined as to Sufficiency.

The district attorney or the court or magistrate may, before the bail is taken, further examine them upon oath, concerning their sufficiency, in such manner as the court or magistrate may deem proper. The statements of the bail in response to the examination must be reduced to writing, and subscribed by them. [L. 1864; D. Cd. § 271; H. C. § 1474.]

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