$ 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. $ 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 - Proceedings on Reversal Without New Trial. 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.] $ 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-Transcript Remains in Appellate Court. 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.] |
