
    No. 10,604.
    The State of Louisiana vs. P. H. Doyle.
    1. Where the object of a proceeding is to have execution issue on a judgment of forfeiture of a bond in a criminal case, it is a criminal and not a civil proceeding, and the jurisdiction of the Supreme Court is to be tested by the character of the crime charged in the indictment.
    2. Where the minutes of the court contain no record of the forfeiture of an appearance bond in a criminal case, the record can not be supplied by parol testimony.
    3. To amend the record long after it has been made up by parol testimony, particularly when the amendment is for the purpose of establishing a judgment, would be a dangerous proceeding.
    In a suit, in the nature of a scire facias, to revive a judgment of the forfeiture of an appearance, and to cause execution to issue thereon, it isnot necessary to advertise the loss of the bond before giving evidence of its description, as the suit is not founded on the bond, but the judgment of forfeiture.
    APPEAL from the Second District Court, Parish of Webster. Drew, J.
    
    
      Walter H. Rogers, Attorney General, and J. A. W. Lowry, District-Attorney, for the State, Appellant:
    
      1. “ The forfeiture of an appearance bond is a criminal proceeding, and the appeal from the judgment of forfeiture is not to be tested by the rule applicable to civil actions.” 37 An. 200; 38 An. 263,542; 41 An., State vs. Oornig.
    2. “The sureties on a bond, which was given for and’procured the release of a prisoner charged with a criminal offence, can not gainsay its regularity, or the regularity of the proceedings in which it was obtained.” 30 An. 628.
    3. “'When the defendant was in custody at the time a bond for his release was given, neither he nor his security can be heard to gainsay the regularity of the proceedings.” 16 An. 141.
    
      Watkins & Watkins for Defendant and Appellee;
    1. The forfeiture of an appearance bond is a criminal procedure only when proceedings are conducted under Sec. of 11. S. 1032, contradictorily with the accused.
    2. And if the State abandons this mode and elects to sue the surety in a direct action without making the accused a party, the suit is a civil one for a sum of money and the Supreme Court is without appellate jurisdiction unless the amount sued for is over $2000.
    3. An appearance bond taken by the sheriff without an order of court fixing the amount of the bond is null. 6 An. 700, 744; 10 An. 532; 13 An. 288; 37 An. 200, 202; 38 An. 542, 545, and cases cited. 12 An. 349.
    4. Judicial records can not be impeached, contradicted or explained by parol evidence. 32 An. 974, citing 3 An. 631, 33 An. 351, 39 An. 142.
   The opinion of the court was delivered by

McEneiíy, J.

Two indictments for larceny were presented against ■one John Richardson. The court granted an order fixing the amount of the bond in each case at $250. Richardson being unable to give this bond, on motion in open court, which does not appear upon the minutes, the bonds were reduced to $150 each, which Richardson, who was in custody, furnished, with Doyle as his surety.

The bonds were lost or- stolen from the clerk’s office. On the theory that the recognizance of the accused had been forfeited, in pursuance of Sec. 1032 R. S., the District Attorney in the nature of a scire facias, proceeded against the surety on the bonds.

There was a judgment of non-suit against the State, from which this appeal is taken.

A motion is made to dismiss the appeal on the ground that the forfeiture of an appearance bond is a criminal procedure only where proceedings are conducted under Sec. 1032, R. S.

The object and purpose of the proceedings is to have an execution issue on a judgment of forfeiture. At most the proceeding is only in the nature of an original action. It springs directly from a criminal proceeding and is not to be tested by the rules applicable to civil actions. 37 An. 200; 38 An. 263, 542; State vs. Cornig, 41 An. (not yet reported).

The motion to dismiss the appeal is denied.

On the Merits.

The order authorizing the sheriff to take bond was in writing. Being unable to furnish the bond in the amount as originally fixed in the written order, it was reduced in each case to $150, on motion in, open court. No record was made of this motion and the order-granted thereon at the request of and for the benefit of the accused.

The signature to the bond is not denied, and it is not urged that the-amount of the bond is not correct. The accused was in custody, and the bond effected his release. As the bond does not exceed the amount authorized in the written order authorizing it, it is difficult-to perceive the force of the objection of the surety. He can not question the regularity of-the proceedings which procured the release of the accused when in custody. The irregularity complained of was the reduction of the bond at the instance and in the interest of the accused on a verbal order of the judge. It is no defence to the breach of the condition of the bonds. 23 An. 596; 21 An. 599; 30 An. 268; 16 An. 141; State vs. Hendricks, 40 An. 719.

The District Attorney offered in evidence the order of court authorizing the taking of the bonds for the amount of $250 each. He then offered to prove a description of the bonds actually taken for $150. To this the counsel for accused objected on the ground that the loss of the bonds had not been established. The objection was properly urged.

The District Attorney afterward offered to prove the loss of the bonds and a description of the same, to which counsel for defendant urged the same objection, and the additional one that the loss of the bonds had not been ascertained in accordance with Art. 2280, Revised Civil Code. It was not necessary to advertise the bonds, as they were not the foundation of the suit. The suit is based upon the alleged forfeiture of the bonds, and a judgment upon the forfeiture on the non-appearance of the accused when called.

On the trial no judgment of forfeiture was offered in evidence. The State offered to amend the minutes by showing by parol testimony that the bond had been forfeited in accordance with Sec. 1032, R. S.

This correction was not offered at the same term of court at which the forfeiture is alleged to have occurred, but at a different term long after the minutes of the previous term had been approved and signed.

To amend the record, long after it has been made up, by parol testimony would be a dangerous proceeding, particularly when the amendment is for the purpose of establishing the existence of a judgment. The minutes of the court are authentic. The forfeiture of the bond in a criminal prosecution is a judicial act and must appear of recor!, and can not be supplied by parol testimony.

Judgment affirmed.  