
    The State v. Fuller.
    
      Summary Proceeding on Forfeited Appearance Bond.
    
    1. When surety on appeaance bond not discharged by failure of grand jury to find indictment; discontinuance. — When a defendant, upon a preliminary investigation, is bound over to . await the action of the grand jury and his recognizance is continued for his appearance at the next term of the court, and from term to term thereafter until discharged by law, the failure of the grand jury at the next term of said court to prefer an indictment against him, does not discharge the sureties, when it appears that the case against the defendant was regularly entered on the docket and an order of continuance was duly made. ' ,
    2. Appearance bond; action of clerk of court in reference thereto. Where a defendant charged with the same felony in three separate cases is, upon preliminary investigation, bound over to await the action of the grand jury in each of the cases, and the bail bond for each case is identical, except in one respect as to one of such bonds, and the grand jury prefers an indictment against him in each case, in the absence of some identifying mark by which the clerk of the court could tell to which indictment the bail bond should be applied, it is not improper for him to apply said bond to the cases indiscriminately.
    3. Same; when bond not sufficient to sustain summary judgment. An appearance bond, which, after setting out the names of four persons, then recites that they “agree to pay t'o the State of Alabama, unless ................ appear at the next term of the said court,” a certain sum, is insufficient to support a judgment upon the defendant forfeiting such bond; since it does not appear by reason of the blank m said bond who was the principal obligor.
    Appeal from the City Court of Montgomery.
    Heard before the Hon. A. 1). Sayre.
    One Brooks Fuller was arrested in the city of Montgomery upon a charge of assault with intent to murder, in three cases. He was carried before the recorder of the oity of Montgomery sitting as a' committing magistrate, and oil April 8, 1899, the recorder hound said Fuller over in each of the three case's to answer an indictment for that offense, and fixed his bail in each of the cases in the sum of $500. Thereupon three separate bonds were given by Brook's Fuller, Mrs. S. Fuller, W. A. Gayle and T. IV. Ilannon, for the appearance of said Brooks Fuller at the next term of the city court of Montgomery, and from day -to day thereof and from term to term thereafter, until discharged by law, to answer an indictment that may he preferred against him in said court, “for the offense of an assault to murder.” Each of these bonds were the same in all particulars, except the one involved in this case, which differed in ' the particular as shown by the opinion. The next term ■of the city court of Montgomery convened in July. At" said term of the court, no indictment was preferred against Brooks Fuller on said charges. On October 3, 1899, during the July term of the court, on motion of ■the solicitor the court entered the following order in each of the eases which appeared oh the docket of said court: “It is ordered by the court that the said charge against the -said Brooks Fuller is hereby continued for investigation by the grand jury to be organized at tlie next term of this court, and the sureties on the bond of the said Brooks Fuller are held.” At the same term of the court the sureties on the appearance bond moved the , court to release them from further liability upon said bonds, upon the following grounds: 1st. The prosecution against. Brooks Fuller is discontinued. 2d. The Condition of said alleged bond was that said Brooks Fuller should appear at that term of the court to answer the indictment and no indictment has been preferred against him. The court overruled this motion. Thereupon, at the same term of the court the sureties moved the court to vacate and set aside the order entered on October 3d, assigning several grounds therefor. This motion was, on October 7, 1899, overruled. At the October term, 1899, of the city court of Montgomery the grand jury returned three indictments against said Brooks Fuller, in each of which lie was charged with an assault with intent to murder. These indictments were returned in the three cases in which Fuller had been bound over to the grand jury by the recorder, and for which the bonds, as above stated, were executed. TJ-pon the filing of said indictments, the clerk of the city court docketed each of said cases and placed the bond with the indictment in the manner stated in the opinion. Each of the cases against Brooks Fuller was set down for hearing during the October term, 1899, of the city court. On the day of said term on Avhich said canses were set for trial, Brooks Fuller was called in each of said causes, but came not, but made default. Thereupon a forfeiture was taken in each of said cases, and a judgment Jtisi-was rendered against the sureties and an alias capias for them issued. In response to the judgment nisi, the sureties appeared and answered. In their answer, they set up that said judgment should not be made final, but that they should be discharged. This contention on the part of the sureties was based on the several grounds which are sufficiently stated in the opinion.
    On the hearing the court rendered judgment setting aside the judgment nisi and discharged the sureties. From this judgment the State appeals, and assigns the rendition thereof as error.
    Chas. G. Brown and Tbnnent Lomax, for appellant.
    There was no discontinuance in this case. The cause against the defendant in each of the cases was docketed and an order was entered by the presiding judge continuing said case. — State v. Kyle, 99 Ala. 256; Ex parte Stearnes, 304 Ala. 93; Rogers v. State, 79 Ala. 59.
    The bond.'which omitted the name of Brooks Fuller as the principal in its body Avas not void on that account. It Avas competent for the State to introduce parol evidence to sIioav that Brooks Fuller, aa'Iio had signed said bond, AA-as the principal. — Code, § 4379; State v. Elrod, 31 Ala. 293; Hanna v. State, 50 Ala.. 100; Foster v. State, 38 Ala. 425.
    The court erred in the judgment rendered. — Ex parte Stearnes, 104 Ala. 93; State v. Kyle, 99 Ala. 256; Vasser'v. State, 32 Ala. 586; Badger v. State, 5 Ala. 21.
    John W. A. Sanford, Jr., contra.
    
    Under the facts in the case, the court had no poAver or authority to make ■any order of continuance in this case. — Ex parte téteames, 104 Ala. 93; Rogers v. tétate, 79 Ala. 59; tétale v. Kyle, 99 Ala. 256.
    One of the bonds is beyond cavil or question absolutely void for want of any condition to be performed. Nothing in the face or body of either of said bonds indicates in the slightest degree to which of these cases each respectively belongs. None of them show which indictment it is undertaking to answer. The record discloses the fact that the clerk of the city court put certain numbers upon them which correspond with the numbers of the indictments, but neither the clerk nor any one else has the right to assign either of these bonds to any particular case. The void bond applies with equal certainty to all, or either of said cases. Consequently, the court cannot single out in which cases the good bonds were executed, and making the forfeiture final in them, assign the void one to the remaining prosecution. The void bond applies with equal propriety to each case. We plead it to each case.' — Broten v. tétate, 104 Ala. 117. Nor can the deficiency be supplied by parol evidence. Dover v. tétate, 45 Ala. 244; tétate v. Whitley, 40 Ala. 728; Gray v. tétate, 43 Alá. 41.
   HARALSON, J.

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 investigation by the grand, jury to be organized at the next ensuing term of tlie court.

' 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 the undertakings did not bear some identifying marks, by which the clerk of the court could tell to which indictment when returned, he could place each bail bond, that there 'was no undertaking for defendant’s appearance in either case. He did place an undertaking in each case, and the disposition he made of them was not improper. The sureties suffered no detriment on this account.—Vasser v. The State, 32 Ala. 586.

.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.  