Opinion
8 Div. 993.
October 12, 1939.
Thos. S. Lawson, Atty. Gen., and John W. Vardaman, Asst. Atty. Gen., for the State.
The statute merely requires an affidavit that affiant "has probable cause for believing and does believe" that an offense has been committed; whereas the affidavit in this case avers unconditionally that the offense was committed. The affidavit is stronger than the statute requires and is therefore sufficient. Code 1923, § 3815; Redd v. State, 169 Ala. 6, 53 So. 908; Johnson v. State, 27 Ala. App. 190, 168 So. 602; Harris v. State, 159 Ala. 108, 48 So. 671. But where an affidavit is merely irregular and not fatally defective, such irregularity cannot be raised for the first time on appeal. Williams v. State, 88 Ala. 90, 7 So. 101; Bush v. State, 27 Ala. App. 30, 167 So. 335; Gilbert v. State, 25 Ala. App. 169, 142 So. 682; Beasley v. State, 27 Ala. App. 332, 173 So. 374. The jury may find accused not guilty of the offense charged, but may find him guilty of an attempt. Code 1923, § 3307.
Robt. E. Coburn, Jr., of Moulton, and Henry D. Jones, of Florence, opposed.
Brief did not reach the Reporter.
The affidavit, constituting the complaint on which the defendant was brought to trial, charges in substantial conformity with the statute, Code 1923, § 4644, "that within twelve months before making of said affidavit, in said State and County, Allie J. Campbell did on the 17th day of April 1937, sell prohibited liquors, contrary to law," and is not subject to the criticism. visited on it by the Court of Appeals. Redd v. State, 169 Ala. 6, 53 So. 908; Johnson v. State, 27 Ala. App. 190, 168 So. 602.
The appeal to the Court of Appeals was from a judgment entered on the verdict of a jury, and the only predicate authorizing the court to examine the facts was the refusal of the affirmative charge requested by the defendant, and if reversible error intervened here, the complaint not being "void" the judgment should have been reversed and the case remanded for retrial by jury.
While there was a motion for new trial, the rulings thereon were not incorporated in the bill of exceptions.
The Court of Appeals erred in rendering judgment discharging the defendant.
The writ of certiorari is therefore granted, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further consideration in the light of this opinion.
Writ granted, reversed and remanded.
All Justices concur, except KNIGHT, J., not sitting.