#### WELCH *vs.*THE STATE.

PACIAS AGAINST BAIL ON POBPEITED RECOGNIZANCE.]

*Sufficiency of recognizance, and admissibility of parol evidence in aid of it.*— A. demurrer does not lie to a *scire facias*against bail, because the offense charged in the indictment is intentionally injuring telegraph wires, while in the *capias,*bail-bond and *scire facias,*it is described as malicious mischief; nor can the bail avail themselves of the supposed variance by motion to exclude the *capias*and bail-bond ; but those papers may be connected with the pending indictment to which they relate, by the,parol testimony of the sheriff and clerk.

*278Appeal from the Circuit Court of Clarke.

Tried before the Hon. C. W. Rapiek.

IN this case, an indictment was found against Columbus Stewart and Bryant Singleterry, at the fall term of said circuit court, 1857, charging that they “ did cut, pull down, destroy, or in some manner injure' intentionally the telegraph line running through said county, or some part or parts of said telegraph line.” The defendant Stewart was arrested under a capias, issued at the same term, and purporting to be founded on an indictment “for the offense of malicious mischief,” alleged to have been, found at that term; and thereupon gave bail, with William R. Welch and Arthur M. Davis as his sureties, conditioned for his appearance *“*to answer an indictment pending in said court against him for malicious mischief,” Stewart having failed to appear, a judgment nisi was taken against him and his sureties, and a *scire facias*thereon issued, which was served on the sureties only. The sureties craved oyer of the indictment, bail-bond and *capias,*and demurred to the *scire*facias, “ for the variance betweén said indictment and the bail-bond and *scire facias.”*The court overruled their demurrer, and they then pleaded, “ that at the time said bail-bond was executed, as set forth in said *scire facias,*there was no such indictment pending in said circuit court of Clarke against said Stewart as is set forth in said bail-bond and *scire facias;”,*and on this plea issue was joined.

On the trial, as the bill of exceptions shows, the State read the *scire facias*in evidence, and then offered to read the *capias,*and to prove, by the clerk of the court, .that it was issued by him on the indictment above described. The defendants objected to the reading of the *capias*“beeause'of the variance between the recitals of the capias.and. of the indictment,” and also to the parol testimony'of the clerk; the' court overruled their objections, and they excepted. In like manner, the court permitted the State to read the bail-bond in evidence, and to prove by the sheriff that he took said bail-bond from Stewart when arrested under said *capias ;*and to these rulings of the court exceptions were *279likewise reserved. The rulings of the court above stated are now assigned as error.

E. C. ToRR.ex, for the appellants.

Intentionally injuring a telegraph wire is a different offense from “malicious mischief. — Code, §§ 8114, 8116, 3118 ; Session Acta 1855-6, p. 6. That parol evidence was in’admiisible for the purpose for which it was received, see Deslonde v. Darrington, 29 Ala. 92; Martin v. Barney, 20 Ala. 367 ; Litchfield v. Ealconer, 2 Ala. 280; Thomason v. Odum, 31 Ala. 108; West v. Galloway, 33 Ala. 806; Xing v. Jemison, 83 *ib.*500.

M. A. Baldwin-, Attorney-General, *contra,*

. cited The State v. Eldred, 31 Ala. 393 ; Yasser v.’ The State, 82 Ala. 586. '

A. J. WALKEE, C. J.

On the authority of The State v. Eldred, (31 Ala. 393,) and Vasser v. The State, (32 Ala. 586,) the judgment of the circuit court is affirmed.