Opinion
6 Div. 839.
February 10, 1931. Rehearing Stricken April 7, 1931.
Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.
Floyd Hill was convicted of recklessly operating a motor vehicle on the public highway, and he appeals.
Reversed and remanded.
J. B. Powell, of Jasper, for appellant.
Appellant was tried in the county court on a charge prohibited by section 3328 of the Code, and on appeal the solicitor filed a complaint under section 49 of the Highway Code. This constituted a departure, and appellant's motion to strike the complaint should have been sustained. Green v. State, 22 Ala. App. 346, 115 So. 700; Griffin v. State, 22 Ala. App. 369, 115 So. 769.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The prosecution originated in the county court, based upon an affidavit made by one Jim Daly, which charged an offense under section 3328 of the Code of 1923. On conviction in the county court, the defendant appealed to the circuit court, where the solicitor filed a complaint charging an offense under section 49 of Acts 1927, approved August 23, 1927. Acts 1927, p. 365. The defendant moved to strike the complaint on the ground of a departure. The same question was raised by demurrer and objections to evidence.
The wording of the two statutes is different, and different penalties are fixed, so as to make it clear that a prosecution under the one would not lie under the other. It is also clear that the prosecution was begun under section 3328, supra, and that it proceeded in the circuit court on appeal, under Acts 1927, supra. This was a departure, and the motion to strike should have been granted. Echols v. State, 16 Ala. App. 138, 75 So. 814.
It becomes unnecessary to pass upon other questions presented. The judgment is reversed, and the cause is remanded.
Reversed and remanded.
On Rehearing.
The appellant having filed his brief as required on the original submission, and the state not having filed brief within fifteen days from such submission, the application for rehearing is stricken. Supreme Court Rule 38; Shirey v. State, 18 Ala. App. 109, 90 So. 72.
Application stricken.