A defendant in a criminal case is never regarded as having been in legal jeopardy, when the indictment is so defective, that a judgment rendered on it would be reversed on appeal. Pinson v. State, 30 Ala. App. 153, 2 So.2d 339; Kendall v. State, 65 Ala. 492; Code, Title 15, § 248. In absence of solicitor's statement or waiver thereof, circuit court is without jurisdiction to proceed in case on appeal from conviction in any lower court. Gamble v. State, 32 Ala. App. 550, 27 So.2d 880; Borders v. State, 26 Ala. App. 467, 162 So. 136; Stewart v. State, 26 Ala. App. 78, 153 So. 296. A challenge for cause based on a fixed opinion as to the guilt or innocence of the defendant, which would bias his verdict, is provable by the oath of the person alone. Code, Tit. 30, §§ 55, 56.

" Moss v. State, 42 Ala. at 547. " Moss has been cited by a number of later cases for the proposition that ' "[w]here a criminal case is tried in the circuit court on appeal from the county court, it is essential that there should be a brief statement of 'the complaint,' signed by the solicitor," and a proceeding without it or a waiver of it, is erroneous.' See, e.g., Bonds v. State, 28 Ala. App. 194, 195, 180 So. 735, 736 (1938); Ivey v. State, 27 Ala. App. 182, 183, 168 So. 459, 461 (1936); Borders v. State, 26 Ala. App. 467, 468, 162 So. 136 (1935); Collins v. State, 19 Ala. App. 516, 516-17, 98 So. 488 (1923); Howard v. State, Ala. App. 9, 81 So. 345, 346 (1919). "The Moss line of cases does not hold that a prosecuting attorney's complaint is a jurisdictional prerequisite to the circuit court's proceeding on trial de novo.

Moss has been cited by a number of later cases for the proposition that " '[w]here a criminal case is tried in the circuit court on appeal from the county court, it is essential that there should be a brief statement of "the complaint," signed by the solicitor,' and a proceeding without it or a waiver of it, is erroneous." See, e.g., Bonds v. State, 28 Ala. App. 194, 195, 180 So. 735, 736 (1938); Ivey v. State, 27 Ala. App. 182, 183, 168 So. 459, 461 (1936); Borders v. State, 26 Ala. App. 467, 468, 162 So. 136 (1935); Collins v. State, 19 Ala. App. 516, 516-17, 98 So. 488 (1923); Howard v. State, 17 Ala. App. 9, 81 So. 345, 346 (1919). The Moss line of cases does not hold that a prosecuting attorney's complaint is a jurisdictional prerequisite to the circuit court's proceeding on trial de novo.

The affidavit and complaint in the form used in this case are legally sufficient to support the conviction. Tatum v. State, 66 Ala. 465; Horn v. State, 22 Ala. App. 459, 117 So. 283; Holt v. State, 28 Ala. App. 219, 181 So. 514; Nailer v. State, 18 Ala. App. 127, 90 So. 131; Freeland v. State, 26 Ala. App. 74, 153 So. 294; Borders v. State, 26 Ala. App. 467, 162 So. 136; Holt v. State, 24 Ala. App. 181, 132 So. 180; Code, Tit. 14, § 119 (1). PER CURIAM.

The trial court had no jurisdiction to try the cause for that the solicitor failed to file a complaint as required by statute. Code 1940, Tit. 15, 363; Bonds v. State, 28 Ala. App. 194, 180 So. 735; Borders v. State, 26 Ala. App. 467, 162 So. 136; Davis v. State, 26 Ala. App. 63, 152 So. 612. A party is not chargeable with negligence or lack of diligence if he possessed, prior to the trial, no means of knowing that the evidence was obtainable. 39 Am.Jur. 168, § 161. Evidence discovered by a party subsequent to the trial of his case is a proper basis of an application for a new trial.