This section is new, but of its justice and propriety the Commissioners entertain no doubt. Cases are of frequent occurrence, where the judgment is reversed after the defendant has suffered a great portion of the imprisonment imposed by bis sentence. By the present practice, unless a stay of proceedings be obtained before the commencement of the execution of the sentence, the defendant must continue to suffer the punishment, though the conviction be clearly wrong. This rests upon the old notion, applicable alike to civil and criminal cases, that an execution once begun to be executed cannot be interrupted. The Revised Statutes have provided for staying proceedings upon an execution in a civil case, at any time before it is fully executed; 2 R. S. 3d ed., 689, sec. 29, 30; and the reason is, if anything, stronger, for the application of this principle to criminal cases.

§ 593. Upon the appeal being taken, the clerk, with whom the notice of appeal is filed, must, within ten days thereafter, without charge, transmit a copy of the notice of appeal and of the judgment roll, as follows:

1. If the appeal be to the supreme court, to the clerk of that court, where the next general term in the district is to he held.

2. If it be to the court of appeals, to the clerk of that court.

CHAPTER II.

DISMISSING AN APPEAL, FOR IRREGULARITY.

SECTION 594. For what irregularity, and how, dismissed.
Dismissal for want of return.

595.

§ 594. If the appeal be irregular in a substantial particular, but not otherwise, the court may, on any day in term, on motion of the respondent, upon five days notice, with copies of the papers on which the motion is founded, order it to be dismissed.

Appeals are frequently dismissed for a departure from some formal requirement of the practice. Nothing but a substantial irregularity should deprive the party of his rights.

§ 595. The court may also, upon like motion, dismiss the appeal, if the return be not made, as provided in section 593; unless, for good cause, they enlarge the time for that purpose.

This section does away with the present practice of a rule to return a writ of error, and places upon the appellant the necessity of having his appeal returned in time; while, upon sufficient cause shown it relieves him from any substantial prejudice from his failure to have it returned.

CHAPTER III.

ARGUMENT OF THE APPEAL.

SECTION 596. Appeal to supreme court, how and where brought to argument. 597. Appeal to court of appeals, how brought to argument.

598. Notice of argument to counsel for defendant.

599. Papers, by whom furnished, and effect of omission.

600. Judgment of affirmance may be without argument, if appellant fail to appear. Reversal, only upon argument, though respondent fail to appear.

601. Number of counsel to be heard. Defendant's counsel to close the

argument.

602. Defendant need not be present.

§ 596. An appeal to the supreme court may be brought to argument by either party, on ten days notice, on any day, at a general term held in the district in which the original judgment was given.

§ 597. An appeal to the court of appeals may, in the same manner, be brought to argument by either party, on any day in term.

$599. If a counsel, within five days after the appeal, have given notice to the district attorney, that he appears for the defendant, notice of argument must be served on him, instead of the defendant; otherwise, notice must be served as the court may direct.

§ 599. When the appeal is called for argument, the appellant must furnish the court with copies of the notice of appeal and judgment roll. If he fail to do so, the appeal must be dismissed, unless the court otherwise direct.

§ 600. Judgment of affirmance may be given, without argument, if the appellant fail to appear. But judgment of reversal can only be given upon argument, though the respondent fail to appear.

This section is conformable to the former practice of the court of appeals, as regulated by Rule 18, of 1847, which provided in substance that the court would not hear an ex parte argument in favor of the affirmance of a decree or judgment; but that if the cause were regularly noticed for argument, and placed on the calendar of causes by the respondent or the defendant in error, and the appellant or plaintiff in error did not appear to argue on his part, or did not furnish the printed cases as required by the rules, the decree or judgment should be affirmed. The same prac

tice also prevailed in the court for the correction of errors. It has been changed, however, by Rnle 11, of 1849, of the court of appeals, which provides that "the party who has noticed and placed the cause on the calendar for argument, may take judgment of affirmance or reversal, as the case may be, if the other party shall neglect to appear and argue the cause, or shall neglect to furnish and deliver cases or points, as required by the ninth and tenth rules."

While the Commissioners readily defer to the superior wisdom of that high tribunal, they are constrained to believe that the practice, as it formerly existed, in criminal cases at least, is better adapted to promote the ends of justice, than that which, under the rule just cited, prevails in the court of appeals. Appeals, as they are proposed by the Commissioners, in both civil and criminal actions, are restricted in all cases, as they always were in the court of errors and court of appeals, to the review of supposed errors, not technically appearing upon the record, but actually occurring in the determination or decision appealed from. It is very proper, therefore, in favor of the decision of the court below, to presume its correctness until the contrary be shown, and as a consequence to provide, that, if the appellant fail to appear to show the errors of which he complains, the judgment should be affirmed. But it does not seem just, on the other hand, if, by reason of accident or neglect which may be the subject of reasonable excuse, the successful party in the court below should fail to appear in the appellate court, he should be deprived of the benefit of a judgment not technically but actually rendered in his favor. It was doubtless upon this view of the subject, that the former practice of the court of errors and court of appeals was founded; and aside from the intrinsic justice of the practice itself, the Commissioners are not aware that it was ever deemed productive of such a degree of inconvenience, either to the court or a party, as to require that it should be changed. At all events, if the change be proper in any case, it should not be made applicable to appeals in criminal cases. With all the safeguards which are thrown around the rights of the prosecution, by retaining the record for a number of days after the judgment, to enable the party against whom it is given, to apply to open the default; cases may arise where a party legally convicted in the court below, might, by such a reversal, escape the consequences of his crime. It is better, therefore, that the court should be subjected to the necessity of examining the case, before reversing, perhaps, a just conviction, than that public justice should be defeated, even though that defeat be occasioned by the neglect of a public officer.

§ 601. Upon the argument of the appeal, if the of fence be punishable with death, two counsel on each

side must be heard, if they require it. In any other case, the court may, in its discretion, restrict the argument to one counsel on each side. The counsel for the defendant is entitled to the closing argument.

The court of appeals has adopted a rule restricting the argument of a cause to one counsel on each side. In capital cases, it seems but reasonable to extend the privilege to two counsel on each side; and for the reasons stated in the note to sec. 440, p. 206-209 it is proposed to allow the defendant's counsel to conclude the argument.

§ 602. The defendant need not personally appear, in the appellate court.

This section is designed to remove a doubt, which has sometimes been suggested, as to whether the defendant in a criminal case should not be personally present at the argument. In practice, his presence is not usually required, nor is it for any purpose necessary.

CHAPTER IV.

JUDGMENT, UPON APPEAL.

SECTION 603. Court to give judgment, without regard to technical errors, defects or exceptions, not affecting substantial rights.

604. May reverse, affirm or modify the judgment, and order a new trial. 605. New trial, where to be had.

606. Defendant to be discharged on reversal of judgment against him, where new trial is not ordered.

607. Judgment to be executed, on affirmance against the defendant.

608. Judgment of appellate court, how entered and remitted.

609. Papers returned, not to be remitted.

610. Jurisdiction of appellate court ceases, after judgment remitted.

§ 603. 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.