Gooden v. State , 35 Ala. 430 ( 1860 )

R. W. WALKER, J.

The scire facias conforms to the precedent in the Code, and the demurrer to it was properly overruled. — Code, § § 3691-2.

[2.] The objections to the record from the Talladega ■circuit court were not well taken. The transcript set out all that was necessary to show that the defendants had entered into a recognizance for the appearance of Foley at the next term of the Randolph circuit court, and this was sufficient. The entry on the minutes of the Talladega circuit court distictly states, that the defendants entered into the recognizance. It is record evidence of that fact, and, as such, imports absolute verity. Independent of statute, the circuit courts possess the undoubted power, where the judgment in a criminal case is arrested, and a nolle prosequi is entered by the State, to bind the defendant over to appear at the circuit court of the proper county to answer a new indictment for the same offense. In such case, the validity of the recognizance is not impaired, because the minutes fail to recite the specific cause for which the indictment was arrested, or that the court ordered another indictment to be preferred,or required the defendant to give bail. — See Code, § § 3549, 3677. In order that the time intervening between the preferring of the first charge or indictment, and the subsequent indictment, may be deducted from the time limited for the prosecution of the offense, it is necessary that there should be an entry of record, setting forth the facts attending the arrest of judgment, or the quashing of the indictment. — Code, § § 3532-3. A failure to spread the facts alluded to on the record,does not invalidate the recognizance: its only effect is, that the operation of the statute of limitations is not suspended during the interval between the arrest of judgmeufc, and the finding of the second indictment.

Judgment affirmed.