128 Ala. 45 | Ala. | 1900
The act approved in 1870 (Acts, 1869-70, p. 47), amending the act to establish the criminal court, of Montgomery, provides that the court “shall hold three terms each year, commencing on the 3rd Monday in February, and the second Monday in July and October,” and fixes no limit for the terms.
The defendant, Brooks Fuller, was bound over to the July term, 1899, of the court, for an assault with intent to murder The bail bond was returned to the city count by. the recorder of the city of Montgomery, who acted as a committing magistrate, and who took and approved the same. No indictment was found at that term of the court, but before the adjournment of the term, and on the 3rd of October, 1899, on motion of the solicitor the court entered an order, which after reciting that the grand jury organized at that term had failed to find an indictment, continued the charge against defendant for
' This order [the sureties on the bail bond, at said July term of the court, moved the court to discharge on several grounds, which motion -was -denied. A judgment ivisi was entered against the sureties who appeared -and answering, -set up many grounds why the said judgment -should not be made final, and why they should be discharged. Among these grounds were, that said Fuller was under no bond for his -appearance at the term of the court at whi-ch indictments were found against him; because -said Fuller was under no bond at all; because the bond is fmctus officio; because at the term -of the court, the -order continuing the charge for further investigation was made, no case had been docketed against him, and nothing was pending -against him in said court, and because the -clerk of ¡the court had no authority, to say to which -case (’there being three charges of the same character and three bail bonds) any particular bond -should apply. The -evidence -showed that on the return of each indictment, ¡the clerk placed -one of the bail bonds in each indictment, which ivas correspondingly numbered
The -court granted the motion and discharged the sureties.
There was no merit in the contention [that the bail was discharged -because the case -against tlie defendant was not investigated by the grand jury at the term to which he -was bound over. At that term, -as the record -shows, the court ordered that the charges -against defendant be continued for investigation by the next grand jury, and that the -sureties on the bail bond be held. This -order saved ithe -ease from a discontinuance.—Ex parte Stearnes, 104 Ala. 93; State v. Kyle, 99 Ala. 256; Rogers v. The State, 79 Ala. 59.
The three bail bonds were identical, except in -one respect -as to the one in tlii-s -case, to be presently noticed, and the indictment being identical as to the offense charged, the one undertaking was as applicable to the one case as to tlie other. Neither bond -showed the party assaulted, nor was this necessary. — Oode, § 4362. There is no merit, therefore, in the -contention, that -because
.In this particular case, — number 223, — the bail bond filed, unlike the ones filed in the other two cases, contained a blank. It reads: “We, Brooks Fuller, S. Fuller, W. A. Gayle and T. W. Hannon agree to pay the State of Alabama five hundred dollars unless............... appear at the next term of the city court of Montgomery,” etc. It is signed by the parties in the order named. It does not apear avIio is the principal obligor, and, for aught appearing, either of them may have been the principal. In Dover v. The State, 45 Ala. 253, it was said: “The statute having directed every undertaking must be in writing, and expressed in a ’certain form of words, and approved by the officer taking it, no deficiencies in these particulars can be helped by parol proof. If the statutory directions are pursued, the instrument aat.11 be so perfect that the court can, upon inspection, proceed to give judgment upon it, without averments to supply its deficiencies, and consequently without parol proof in support of its regularity. In effect, the undertaking of hail under the statute becomes a record upon which the court alone premises judgment.” — The State v. Whitney, 40 Ala. 728.
Our conclusion is, that the judgment of the city court in this, case, for (the deficiency of the undertaking as stated, must be affirmed.
Affirmed.
