Hendon v. State , 49 Ala. 380 ( 1873 )

B. F. SAFFOLD, J.

— The appeal is from a final judgment on a forfeited undertaking of bail. There is no bill of exceptions. It seems that upon a return of a sci. fa. executed on the sureties, and “ not found ” as to the principal, the court rendered judgment final against those served. Afterwards, at the same term, this judgment was set aside; but the clerk omitted to enter up either the judgment final, or the order setting it aside. One of the errors assigned is the refusal of the court to require the clerk to enter the matters thus omitted. We cannot see how the appellants are prejudiced by such refusal or failure to complete the record.

The undertaking of bail is set out in the transcript, but it does not appear how it gets a place there. It is not a part of the record, unless made so by bill of exceptions or plea. Richardson v. The State, 31 Ala. 347. Nevertheless, it is not amiss to say that the omission of the words “ a criminal prosecution for,” the undertaking being otherwise in conformity with the form prescribed (B. C. § 4239), does not constitute a substantial variance. The names of those subscribing it are signed to it, because one is signed in writing by himself, and the other two by mark, with their names written near, and attested by one who wrote his own name as a witness. B. O. § 1.

The judgment is affirmed.