MONTGOMERY, J. This was an action on a recognizance entered into in open court in a. proceeding pending against one Joseph Gregory upon an information which charged against Gregory the offense of feloniously breaking and entering, in the night-time, a shop not adjoining to or occupied with a dwelling house, with intent to commit larceny, and, in a second count of the information, the offense of larceny. The condition of the recognizance was as follows:

"If the said Joseph Gregory doth well and truly appear at the next term of this court, and answer to an informa tion on file against him for burglary, and not depart from said court without leave until discharged by due course of law, then the said recognizance to be null and void."

1. It is contended that the misnomer of the offense rendered the recognizance void. Section 9485, 2 How Stat., provides that

"No action brought upon any recognizance shall be barred or defeated

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* * by reason of any defect in the form of the recognizance, if it sufficiently appear from the tenor thereof at what court the party was bound to appear, and that the court

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before whom it was taken was authorized by law to require and take such recognizance."

While this provision does not dispense with the neces sity of embodying the substance of the undertaking in the recognizance, it should be construed to cure errors in form which do not affect the rights of the principal or surety. The recognizance must, it is true, identify the proceeding; and, as the offense stated in the recognizance is simply designated as "burglary," which the offense charged in the information technically was not, if the recognizance had been taken out of court, and conditioned for an appearance to answer to an information to be thereafter filed, it may have been an insufficient designation of the offense. In Cole v. People, 37 Mich. 548, ou a prosecution for a like offense as that charged in the

information in this case, the record of the sentence designated the offense as "burglary." The court said:

"The offense is not burglary, but is a statutory offense quite different from that in some particulars. Burglary is the felonious breaking and entering of a dwelling house in the night-time. This offense is the felonious breaking and entering in the night-time of a store not adjoining to or occupied with a dwelling house. But this misnomer in the order for judgment is of no importance. It could not affect the rights of the plaintiff in error, and it would be corrected by the record itself, which shows what the offense really was."

In the present case a term was employed which, while not the legal, technical name for the offense charged, was a term very commonly employed to designate the offense. But what is of more importance is that the recognizance was taken before the same court in which the information was then pending, and that information is referred to in the condition of the recognizance. We think the recognizance, in view of this fact, sufficiently identified the offense which the accused was to answer. See Gildersleeve v. People, 10 Barb. 35; People v. Rutan, 3 Mich. 50; Daniels v. People, 6 Mich. 386.

2. At the term of the court at which Gregory was bound to appear, a continuance was granted to the next term, on his application. It is contended that this operated to discharge the sureties. By the great weight of authority, this condition is construed to require the appearance from day to day, or from term to term, until discharged. 2 Am. & Eng. Enc. Law, 32; Gallagher v. People, 91 Ill. 590; State v. Tieman, 39 Iowa, 474; Gentry v. State, 22 Ark. 544; People v. Hainer, 1 Denio, 454; State v. Breen, (S. D.) 62 N. W. Rep. 135; People v. Gordon, 39 Mich. 261; Crawford v. Vinton, 102 Mich. 83.

3. We think error was committed in entering judg ment for interest on the amount of the recognizance from the date of forfeiture. Section 8457, 2 How. Stat., provides that the judgment shall be for the amount of the

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penalty of the recognizance. See, also, Fraser v. Little, 13 Mich. 195.

The judgment will be modified, and a judgment entered in this court for the penalty of the bond, $600, and costs of the court below.

The other Justices concurred.

PEOPLE v. CONLEY.

1. CRIMINAL LAW-ASSAULT WITH INTENT TO DO GREAT BODILY HARM-EVIDENCE.

In a prosecution for an assault with intent to do great bodily harm less than the crime of murder, testimony tending to show that the respondent entertained an ill will towards the complaining witness, that on the occasion in question he struck her upon the head with a club, felling her to the ground, at the same time threatening to kill her, and that the blow produced a contused and lacerated wound, is sufficient to sustain a conviction of the offense charged.

2. SAME CONDUCT OF PROSECUTING ATTORNEY-HARMLESS ERROR. Upon a trial for an assault, the respondent, on cross-examination, admitted having been convicted of a prior assault upon the complaining witness, and the prosecuting attorney thereupon propounded further questions regarding the details of such assault. Objections interposed to such questions were promptly sustained by the court, who also instructed the jury that the fact of such conviction was admissible solely as bearing upon the credibility of the witness. Held, that the respondent was not prejudiced.

3. CRIMINAL LAW-IMPROPER REMARKS OF PROSECUTOR.

A conviction will not be reversed because of alleged improper remarks of the prosecuting attorney unless he so clearly departed from the evidence and the line of legitimate argument that any reasonable person would conclude that the jury were prejudiced thereby.

Exceptions before judgment from Tuscola; Beach, J. Submitted June 20, 1895. Decided September 26, 1895.

William R. Conley was convicted of an assault with intent to do great bodily harm less than the crime of murder. Conviction affirmed.

J. E. Kinnane, for appellant.

Fred A. Maynard, Attorney General, and T. W. Atwoood, Prosecuting Attorney, for the people.

GRANT, J. The respondent was convicted of an assault upon oné Anna Bemiss with intent to do great bodily harm less than the crime of murder.

1. It is insisted that there was no evidence of any intent to do the great bodily harm contemplated by the statute, and that the court should, as requested, have directed a verdict of not guilty. It is argued that the case is ruled by People v. Ross, 66 Mich. 96; People v. Lennon, 71 Mich. 298; and People v. Pearl, 76 Mich. 208.

Mrs. Bemiss and respondent owned adjoining land. Bitter feeling had for a long time existed between them, owing to a dispute as to their rights in the land. He had assaulted her once before, for which he was arrested, and pleaded guilty. A fire was burning upon respondent's land, and in close proximity to the division fence. Mrs. Bemiss, her daughter, and hired man, Frank Lawrence, went upon the respondent's land, to put the fire out and save the fence. Respondent came through the woods with a stick about six feet long, and at once ordered them off his land. Lawrence refused to go, and a fight ensued between him and respondent, in which sticks, or "clubs," as the witnesses called them, were freely used. Respondent testified that he did not intentionally strike her; that she told Lawrence to stand his ground; that she struck him while he was fighting with Lawrence; and that she was hit by a blow intended for Lawrence. Mrs. Bemiss testified as follows:

"I heard Frank Lawrence say, 'Here comes the old man,' and I didn't have a chance to get away if I wanted to. I just went to look up, and he went for Frank Lawrence, and struck him over the head, and then he turned around and struck me on the head, and I fell. After a while I got up. I went over and hollered to Frank Lawrence, and asked him if he would not throw me his handkerchief; my head was cut. I hollered for the little girl to go for the doctor and the sheriff as quick as she could. I expected I would be dead before she got back. I said that to her. He said: 'Yes, damn you. I will kill you before you leave here;' and he struck me again, and I fell onto the ground, and I don't remember any more. I didn't say anything until I put my hand up and said, 'Old man, I guess you did me up this time.' He said, 'Yes, damn you; I will finish you before you leave here.'"

The physician testified that he found a contused and lacerated wound on the back of her head, with blood oozing through it in many places; that there were one or two cuts through the scalp; that it must have been a hard blow; that, if the wound was inflicted by one blow, a large club must have been used, but if it was inflicted by more than one blow a small club would have produced the injury.

In the presence of this testimony, the question of intent was properly left to the jury.

2. The respondent was a witness in his own behalf, and on cross-examination, for the purpose of discrediting him, he was asked if he had not been convicted of assault and battery upon Mrs. Bemiss. This he at first denied. He admitted his arrest. Being asked if he did not plead guilty, he replied: "I did not. I told the justice how it was, and he fined me $20." The prosecuting attorney then proceeded to ask other questions in regard to the details of that assault, but the court promptly sustained the objections to the questions, holding that the witness had admitted his conviction, and that the details were inadmissible. The court, in both this ruling and the charge, instructed the jury that the sole use for which such conviction was admitted was to affect his credibility