Satterwhite v. State

RICE, C. J. Prom a judgment of the circuit court in a proceeding in bastardy, an appeal to the supreme court may be taken, by merely giving security for the costs of the appeal, to be approved by the clerk of the circuit court. — Code, §3821. Such security is not required to bo in any prescribed form. It may be given by bond, or by a simple acknowledgment in writing. Whether it be in one form or. another, if it be security for the costs of the appeal, and is approved by the clerk of the circut court, it is sufficient. — Riddle v. Hanna, 25 Ala. R. 484; Spencer v. Thompson, 24 Ala. R. 512. In Williams v. The State, 26 Ala. Rep. 86, the bond first given as a security for the costs of the appeal was held fatally [69] defective, because there was a mis-recital in it of the respective days on which the judgment required the defendant to pay the respective sums adjudged against him. Those days, being inserted in the bond, became material. The recital, as to them, constituted a part of the contract. That recital was false, and, therefore, there was a fatal variance — actual repug-nancy, between the judgment described in the bond and the judgment rendered by the circuit court. — The People v. Monroe Common Pleas, 3 Wend. R. 426; Weissenger & Crook, ex parte, 7 Ala. R. 710; Flournoy v. Mims, 17 Ala. R. 36. But the mere omission of any recital in that bond, as to the days on which the judgment required the respective sums to be paid, would not have had the effect which the mis-recital had. If the bond had correctly recited the aggregate of the respective sums which the judgment required the defendant to pay, the parties to the judgment, and the term of the court at which it was rendered, and had contained what, in legal contemplation, amounted to an undertaking for the costs of the appeal, it would not have been held defective as an appeal bond or as security for the costs of the appeal. If there had been simply such omission of a recital as to those days, no repugnancy would have been made to appear, and there would have been no fatal variance. — The People v. Orleans Common Pleas, 2 Wend. R. 292; Meredith v. Richardson, 10 Ala. Rep. 828; see, also, authorities cited supra. The same accuracy and fullness of description of the judgment are not required in a bond which is not to operate as a supersedeas, but merely as security for the costs of an appeal, as is required in a forthcoming bond, to give -to it, on a return of forfeited, the effect of a statutory judgment authorizing the immediate issuance of execution against all the obligors. To give such effect to a forthcoming bond, under our statute, it is essential that the description of the execution in it should be true and perfect. An omission to describe .the execution fully may as effectually destroy such effect of such a bond as actual misdescription of the execution, although the bond may still be valid as a common-law obligation. The principle on which this position rests is, that every such summary judgment, or judgment in such summary proceeding, must be full and perfect in itself, in order to support an execution issued [70] under it. — Tombeckbee Bank v. Strong’s Ex’r, 1 Stew. & Por. 187; Nicholson v. Burke, 15 Ala. Rep. 353; see, also, cases cited supra. A bond, executed in such a case as the present, and designed to operate as mere security for the costs of the appeal, is to be construed in this court as it would or might be in the office of the circuit clerk. There, it might be compared with the entries, papers, and proceedings on file and of record in the particular case in which it was in fact given, and its application to that case shown by such comparison. If this were not the law, no valid appeal could ever be taken, by merely giving security for the costs of the appeal, where two or more judgments for the same amount were rendered between the same parties, by the samp court, on the same day. It is conceded that “parol evidence can neither bend the bond to the record, nor the record to the bond,” and that neither the bond nor the record can be contradicted by parol evidence. But the operation, of the bond can be assisted and directed by the record. — Rakes v. Pope, 7 Ala. Rep. 161. A comparison of tho bond with the record is allowable for that purpose. When such comparison is made in this court, the certificate of the clerk attached to tho transcript sent here constitutes part of the record (Carey v. McDougald, 25 Ala. Rep. 109); and whenever such comparison would supply the alleged defects of the bond, and show the application of the bond to the particular case, and tho bond in legal contemplation amounts to an undertaking for tho costs of the appeal, it ought to be supported as a good appeal bond, or as security for the costs of the appeal, upon the maxim, “ id cerium est quod cerium reddi potest.” — Weissinger & Crook, ex parte, 7 Ala. R. 710; Summer v. Glancey, 3 Blackf. Rep. 361; Gayle v. Hudson, 10 Ala. Rep. 116; Meredith v. Richardson, 10 Ala. Rep. 828, and cases there cited; Chapel v. Congdon, 18 Pick. Rep. 257. Without saying more on this point, we are satisfied that tho bond in the present case, under the principles above stated, amounts to security for costs of the appeal. The motion to dismiss the appeal must therefore bo overruled. ■ The court charged the jury, that if tho State produced a preponderance of testimony, they might uyon such preponderance of proof find the defendant guilty. To this charge the [71] defendant excepted, Upon the authority of Mays v. Williams, 27 Ala. R. 267, we hold this charge to be erroneous. See, also, Brandon v. Cabiness, 10 Ala. Rep. 155 (3d head note.) There was no error in the other charge given by the court, nor in refusing the charge asked by the defendant. This proceeding is not a criminal case. — State v. Pate, Busbee’s Rep. 244. The question raised on the offer of defendant to prove his character, on cross-examination of the witness introduced against him, may not arise on another trial, and we decline to consider it. For the error above pointed out; the judgment is reversed, and the cause remanded.