Opinion
4 Div. 912.
June 30, 1933.
Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.
John McGee was convicted of violating an ordinance of the City of Elba, and he appeals.
Judgment reversed, and the cause remanded.
The affidavit upon which defendant was tried in the mayor's court is as follows: "Before me, R. L. Cooper, Mayor in and for said City, personally appeared J. W. Parker, who being duly sworn, says on oath, that he has probable cause for believing and does believe that John McGee is guilty of violating Prohibition Law against the peace and dignity of the City of Elba."
The complaint filed in the circuit court is as follows: "Comes the City of Elba, Alabama, by its attorneys and complains that John McGee did, in the City of Elba, Alabama, or the police jurisdiction thereof, accept or deliver or receive or have in his possession prohibited liquors or beverages as defined by Section 79 of the City Code of the City of Elba, Alabama, and in violation of Section 80 of said City Code prohibiting the acceptance, or delivery, or receiving or having in possession prohibited liquors or beverages and providing punishment therefor as is set out in Section 81 of said City Code which said Section of said City Code was in force and operation before, at and since commission of offense, and now."
Beck Yarbrough, of Enterprise, for appellant.
The complaint filed in the circuit court was an entire departure from the complaint filed in the mayor's court. It should have been stricken on defendant's motion. Arzumanian v. Birmingham, 165 Ala. 374, 51 So. 645; Lewis v. State, 160 Ala. 121, 49 So. 753; Mehaffey v. State, 16 Ala. App. 99, 75 So. 647.
Owen Carmichael, of Elba, for appellee.
Brief did not reach the Reporter.
If the affidavit made before the mayor of Elba, upon which this prosecution was begun, charged any offense (and as to this we do not commit ourselves), it was one against the laws of the state.
After appellant's conviction before the said mayor on this charge, and after his appeal had been taken to the circuit court, the complaint upon which he was tried in the circuit court was filed, charging him, not with a violation of any state law, but undertaking to charge him with the violation of an ordinance of the city of Elba.
As said by the late learned Mr. Justice Denson for the Supreme Court in the opinion in the case of Lewis v. State, 160 Ala. 121, 49 So. 753, 754: "We know of no law authorizing such a radical departure as this record reveals," etc.
For the error in overruling appellant's motion to strike the complaint filed in the circuit court, the judgment is reversed, and the cause remanded. Other questions apparent will not be considered.
Reversed and remanded.