Appeal. ment does not avoid the necessity for giving bail as provided in the preceding section. Power of court at subsequent term to sentence defendant to hard labor to pay costs; judgments imposing punishment cannot be pronounced by piecemeal.-Ex parte State, 94 Ala. 431 (10 So. 549). When sentence to pay costs at the rate of not less than thirty cents each day and not to exceed eight months in cases of misdemeanor.-Ex parte State, 94 Ala. 431 (10 So. 549); Burk's case, 71 Ala. 377. 6252. (4321) (4513) (4982) (4306) (755) Effect of undertaking when appeal not sustained.—When the defendant in a case of misdemeanor is sentenced to hard labor or imprison ment and gives bail pending the appeal, and the judgment of conviction is affirmed or the appeal is dismissed, he is bound by the undertaking of bail to surrender himself to the sheriff, at the county jail, within fifteen days from the date of such affirmance or dismissal; and if he shall fail to do so, the sheriff must indorse the bail bond forfeited and a writ of arrest must be issued by the clerk, and if not executed another must be issued, and so on until the judgment has been executed. If the defendant is taken on such writ, or if he shall surrender himself to the sheriff, the sentence must, without delay, be carried out as if no appeal had been taken. 6253. (4322) Effect when appeal sustained.—When the judgment of conviction is reversed and the cause remanded, such undertaking binds the defendant to appear from term to term until discharged by law and answer the charge, as in bail before conviction; but the defendant is not bound to appear before the trial court pending his appeal. 6254. (4323) (4514) (4983) (4307) (756) Proceedings on forfeited undertaking.-When any undertaking of bail under the provisions of this article is forfeited by the failure of the defendant to surrender himself to the sheriff, or to appear and answer the charge, according to the terms and effect of such undertaking, the same proceeding must be had thereon as on the forfeiture of other undertakings of bail in the circuit or city court. See § § 6354-6360 (4374-4380) and citations thereto. 6255. (4324) (4510) (4979) Transcript on appeal; when made out and forwarded.-When the execution of the judgment has been suspended as provided in this article, or when an appeal is taken without such suspension, it is the duty of the elerk of the court in which the case was tried to make out a full and accurate transcript of the record, attach his certificate thereto, and transmit it to the clerk of the supreme court within twenty days thereafter; but when time is allowed for signing a bill of exceptions, such transcript must be made out and for Appeal. warded within twenty days from the signing of such bill of exceptions, or, if such bill is not signed and filed, such transcript must be made out and forwarded within twenty days after the expiration of the time so allowed. (Mar. 8, 1871, p. 41, § 1.) The reservation of question of law, nor the taking of appeal does not per se operate the suspension of a sentence.—White v. State, 134 Ala. 197 (32 So. 320). Unless court makes order suspending the execution of a sentence, the appeal does not have that effect.-Ex parte Goucher, 103 Ala. 305 (15 So. 601). This section provides when clerk shall make out and forward transcript.-White v. State, 134 Ala. 197 (32 So. 320); Bolling's case, 78 Ala. 469; Ex parte Cameron, 81 Ala. 87 (1 So. 20). 6256. (4325) What transcript need not contain.—Such transcript need not contain mere orders of continuance, nor the organization of the grand jury which found the indictment, nor the venire for any grand or petit jury, nor the organization of regular juries for the week or term at which the case was tried, unless some question thereon was raised before the trial court; but, in the absence of any such question, such proceedings are, upon appeal, presumed to have been regular and legal. Record on appeal for robbery must show that the day was set for trial and a special jury was drawn in accordance.-Kinnebrew v. State, 132 Ala. 8 (31 So. 567). These facts cannot be omitted from the record under this section of the Code.-Kinnebrew v. State, 132 Ala. 8 (31 So. 567). Transcript need not show organization of grand jury.-Hatch v. State, 144 Ala. 50 (40 So. 113). The organization of the jury will be presumed to be correct, where it is omitted from the record.—Tipton v. State, 140 Ala. 39 (37 Sơ. 231). 6257. (4326) Defendant may dismiss his appeal in trial court; exception.-At any time before the transcript has been forwarded to the clerk of the supreme court, the defendant may dismiss his appeal, by filing, in the office of the clerk of the court in which the case was tried, a statement in writing to that effect, signed by himself or his attorney of record; and the clerk must enter the fact and date of such dismissal upon the margin of the record of the judgment. If the judgment has been suspended, such dismissal shall terminate the suspension and put the judgment into operation, and the same must be executed in all respects as if the appeal had been dismissed by the supreme court. For such costs as may have accrued upon the appeal, the clerk may issue execution against the defendant, in favor of the state. If sentence of death has been pronounced, such dismissal must be made at least ten days before the day appointed for the execution of the sentence. When dismissal shall terminate suspension.-White v. State, 134 Ala. 197 (32 So. 320). 6258. (4327) (4516) (4984) By whom and when granted.— A writ of error on any judgment rendered in a criminal case may issue on an order to that effect by any one of the judges of the supreme court in vacation, or by the supreme court in term time, addressed to the clerk of the court in which the judgment was rendered; but such writ must only be granted on some error of law apparent on the transcript of the record. See Toulmin's Digest, pp. 480 et seq. for original statute. (Clay's Digest, p. 470, § 2.) Writ of error can only be awarded on a judgment and for error apparent on the record; denying prayer for discharge or discharging on habeas corpus is not such judgment; this can be reviewed on appeal.-Ex parte Smotherman, 140 Ala. 168 (37 So. 376). Defendant may appeal to supreme court for writ of error; when supreme court will reverse and remand on writ of error.-Dunklin v. State, 134 Ala. 195 (32 So. 666). Formerly, when no question of law had been reserved, revision of judgment could be obtained only by writ of error.-Ex parte Knight, 61 Ala. 382; Taylor's case, 112 Ala. 69 (20 So. 848). 6259. (4328) (4517) (4985) Transcript, etc., made out and delivered to defendant.-On the filing of such order with the clerk of the court in which the judgment was rendered, such clerk must give the party filing it a certificate of the filing thereof; must make out a writ of error, and a transcript of the record and proceedings had in the cause; attach his certificate, and the writ of error, to such transcript, and deliver the same, on demand, to the party suing out the writ, or to his attorney. 6260. (4329) (4518) (4986) Order granting writ entered on minutes; writ prosecuted to return term, else dismissed.— When a writ of error is awarded by a judge of the supreme court in vacation, such judge must cause an entry of such order to be made on the minutes of the court at its next term; and if any writ of error is not prosecuted to the term to which it is returnable, it must be dismissed, and no writ of error afterwards allowed. 6261. (4330) (4519) (4987) Execution of sentence suspended, etc.-If the defendant is in the custody of the sheriff, and the order allowing the writ directs a stay of proceedings Consideration; Affirmance; Reversal. on the judgment, the sheriff must, on being served with the clerk's certificate that the order has been filed, and with a copy of the order, keep and detain the defendant in his custody, without executing the sentence which may have been passed on his conviction, to abide the judgment that may be rendered on the writ of error. 6262. (4331) (4520) (4988) In case of misdemeanor, defendant bailed. If the conviction is for an offense which is punishable by a fine, or by imprisonment in the county jail, or by hard labor for the county, the judge or court awarding the writ must also direct the clerk of the court in which the conviction was had to admit the defendant to bail in a sum to be prescribed by such judge or court, with sufficient sureties, conditioned for his appearance at the next term of the court in which the conviction was had, to abide such judgment as may be rendered on the writ of error. 6263. (4332) (4521) (4989) Proceedings on forfeiture of undertaking; writ of arrest.—If the defendant fails to appear according to the undertaking, a writ of arrest must be issued, and the same proceedings be thereon had as are prescribed by sections 6252 (4321) and 6253 (4322); and the same proceedings must be had on the forfeited undertaking as on the forfeiture of other undertakings of bail in said court. (r.e.c.) 6264. (4333) (4509) (4990) Assignment or joinder of error unnecessary; duty of court.-In cases taken to the supreme court under the provisions of this chapter, no assignment of errors, or joinder in errors, is necessary; but the court must consider all questions apparent on the record or reserved by bill of exceptions, and must render such judgment as the law demands. But the judgment of conviction must not be reversed because of error in the record, when the court is satisfied that no injury resulted therefrom to the defendant. See Toulmin's Digest, pp. 480 et seq. for original statute. (Clay's Digest. p. 470, § 7.) Refusal of court to stop counsel in argument held error without injury and not to work a reversal.-Lide v. State, 133 Ala. 43 (31 So. 953). If no injury results from error, court will not reverse.-Lide v. State, 133 Ala. 43 (31 So. 953). If no injury results from restoring names to jury box, it will not work a reversal.-Jimmerson v. State, 133 Ala. 18 (32 So. 141). Laying bundle of clothes before jury held that injury not thereby shown.-White Consideration; Affirmance; Reversal. v. State, 133 Ala. 122 (32 So. 139). Injury will be presumed from error unless the court is satisfied that the defendant was not prejudiced.-Abernathy v. State, 129 Ala. 85 (23 So. 844). Where defendant is convicted of murder in the second degree, charges as to murder in the first degree are without injury. -Parnell v. State, 129 Ala. 6 (29 So. 860). Not prejudicial error to allow motion to strike, though demurrer should have been interposed.-Black v. State, 123 Ala. 78 (26 So. 340). Where defendant convicted of manslaughter, charges as to murder error without injury.-Winter v. State, 123 Ala. 1 (26 So. 949). Assignments of error must be made in bastardy cases; such proceedings not within statute.-Williams v. State, 117 Ala. 199 (23 So. 42). Admission of irrelevant evidence, error cured by subsequently making it relevant.-Fuller v. State, 117 Ala. 36 (23 So. 688). Admission of irrelevant evidence, if withont injury, will not work a reversal.-Gaston v. State, 117 Ala. 162 (23 So. 682). Charge of court as to meaning of phrase "formed design."-Martin v. State, 119 Ala. 1 (25 So. 255). Subsequent cross-examination may cure errors as to evidence.—Brown v. State, 137 Ala. 99 (34 So. 822). Statutory regulations are merely directory and will not work a reversal.-Baker v. State, 122 Ala. 1 (26 So. 194). Where evidence is inocuous to defendant, it will not work a reversal.—Thompson v. State, 122 Ala. 12 (26 So. 141). Error in refusing charge will not reverse where another charge was given substantially embracing the same proposition.-Taylor v. State, 121 Ala. 39 (25 So. 701). Where error consists in charging law too favorable to defendant, it will not work a reversal. Henson v. State, 120 Ala. 316 (25 So. 23). Forcing defendant to trial, if without injury, will not work a reversal.-Sanders v. State, 131 Ala. 1 (31 So. 564). The court must be satisfied that the verdict would not have been different if the error had not been made, else it must work a reversal.-Dennis v. State, 118 Ala. 72 (23 So. 1002). If there be undisputed evidence to a given fact, it may cure error.-Murphy v. State, 118 Aia. 137 (23 So. 719). Error as to fine and judgment, if without injury, will not work a reversal.— Goldsmith v. Mayor & Aldermen of Huntsville, 120 Ala. 182 (24 So. 509). Where a conviction is had on one count a variance as to another is error without injury. Sims v. State, 120 Ala. 380 (25 So. 33). Allowing witness to state conclusion is without injury if he subsequently states specific facts.-Evans v. State, 120 Ala. 269 (25 So. 175). Errors as to organizing grand jury.-Cross v. State, 63 Ala. 40. Refusal to examine witness on his voir dire.-Walker v. State, 139 Ala. 56 (35 So. 1011). Rulings on charges cannot be assigned as error.-Feagan v. State, 139 Ala. 107 (36 So. 18), overruling Smith v. State, 130 Ala. 95 (30 So. 432); Williams v. State, 130 Ala. 107 (30 So. 484). Charges which are merely repetitions of others given may be refused.-Hainsworth v. State, 136 Ala. 13 (34 So. 203). Only the names of the special jurors summoned and the names of the regular jurors in attendance should be written on the slips or placed in the box.-Kimbrell v. State, 130 Ala. 40 (30 So. 454). Though not required, yet a brief would aid the court.-Robinson's case, 46 Ala. 10; Williams's case, 47 Ala. 659. See Hunter's case, 48 Ala. 272. Court must look to the whole record.-Ex parte Whitaker, 43 Ala. 323; Williams's ease, 47 Ala. 659; Foster's case, 39 Ala. 229. See Brazier's case, 44 Ala. 387. In any cases, if errors apparent on the record are injurious to accused, cause will be reversed.-Williams's case, 47 Ala. 659. Ex parte Knight, 61 Ala. 483. Formerly the doctrine of error without injury was not applied in criminal cases.-Pellum's case, 89 Ala. 28 (8 So. 83); Maxwell's case, 89 Ala. 150 (7 So. 824); Marks's case, 87 Ala. 99 (6 So. 377). Proof that inquest was held. -Peel v. State, 144 Ala. 125 (39 So. 251). The fact that one grand juror was sworn after others no cause for quashing.-Dunn v. State, 143 Ala. 67 (39 So. 147). The name of a person upon a venire who is not an original juror is not error without injury.-Carwile v. State, 39 So. 220. Evidence examined and held error without injury.-Morris v. State, 39 So. 608. 6265. (4334) (4522) (4991) Affirmance of judgment.-If the judgment is affirmed, or the appeal is dismissed, the supreme court must direct the sentence to be executed, and, if the day appointed for the execution of the sentence has passed, |