
    No. 9493.
    The State v. Richards.
    Criminal Law. — Practice. — Appeal from Justice. — Recognizance.— Statutes Construed. — Defects Cured. — A recognizance, given for the purpose of effecting an appeal from the judgment of a justice of the peace in a criminal case, is an appeal bond within the meaning of the act of February 25th, 1875, R. S. 1881, sec. 1283, and, if defective, a new bond may he filed in lieu of it. If this were not so, its defects would he deemed cured by force of see. 790 of the code of 1852. R. S. 1881, sec. 1221.
    From the Washington Circuit Court.
    D. P. Baldwin, Attorney General, F. L. Prow, Prosecuting Attorney, and S. B. Voyles, for the State.
    
      H. Heffren and J. A. Zaring, for appellee.
   Woods, J.

The appellee appealed to the circuit court from the judgment of a justice of the peace, assessing against him a fine for obstructing a highway. The recognizance given by the appellee for his appearance in the circuit court was drawn in the ordinary form of an appeal bond in civil cases, and was left blank as to the amount of the penalty, and on this account the prosecutor moved to dismiss the appeal. The appellee interposed a motion for leave to file another bond, which leave the court granted, and, the new bond having been filed, the court overruled the motion to dismiss. There was no error in this ruling. The act of February 25th, 1875, 2 R. S. 1876, p. 623 (Revision of 1881, p. 246, sec. 1283), entitled “An act concerning the practice in cases appealed to the circuit court,” provides : “That in all cases where an appeal shall be taken from a justice of -the peace” (or other courts named) “to the circuit court, and the appeal bond, filed in such case, shall be defective in substance or form, or for want of proper approval, such case shall not be dismissed on account of such defect or informality, if the appellant will, when required by the court to which such appeal is taken, file in such court a sufficient bond, with surety,- to the acceptance of such court in such sum as such court shall require.”

A recognizance, given for the purpose of effecting an appeal from a judgment of a justice of the peace in a criminal, case, is an appeal bond within the meaning of this act. But, if this were not so, the ruling of the court was right for another reason. The defect in the original bond was cured by force of the 790th section of the code. 2 R.S. 1876, p. 311.

The evidence is not in the record, and no statement is. made in the bill of exceptions as to the character and scope of the proof. It is, therefore, impossible to decide whether the court committed error, either in giving or refusing instructions.

The judgment of the circuit court is affirmed.  