Opinion
1 Div. 971.
November 18, 1930. Rehearing Granted January 13, 1931.
Appeal from Circuit Court, Monroe County; F. W. Hare, Judge.
Clarence Johnson was convicted of assault and battery, and he appeals.
Reversed and remanded on rehearing.
C. L. Hybart, of Monroeville, for appellant.
No statement was filed by the solicitor as required by statute; the judgment must be reversed. Code 1923, § 3843; Collins v. State, 19 Ala. App. 516, 98 So. 488.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The prosecution in this case originated in the county court upon an "affidavit and complaint" which charged the defendant (appellant) with the offense of assault and battery upon A. J. Chaudron. From a judgment of conviction in the county court an appeal was taken to the circuit court. The defendant was again convicted and appealed to this court. The appeal here was originally submitted upon the record proper on November 13, 1930. Without opinion the judgment of the lower court was affirmed. Upon this application for rehearing our attention is called to the fact that no complaint or statement by the solicitor was filed in the circuit court as required by section 3843 of the Code 1923. Said statute provides, in cases of this character, "The trial in the circuit court shall be de novo, and without any indictment or presentment by the grand jury; but the solicitor shall make a brief statement of the cause of complaint signed by him," etc., and this section of the Code prescribes also a form which may be used in this connection.
Upon further examination of the record we find the insistence of appellant is correct and no such statement of the cause of complaint was signed by the solicitor, nor filed in the cause, nor is such statement shown to have been waived. Error upon the record is therefore apparent. Perry v. State, 17 Ala. App. 80, 81 So. 858, and cases cited.
The order of affirmance of December 18, 1930, is withdrawn. The application for rehearing granted and the judgment of conviction from which this appeal was taken is reversed and remanded.
Application for rehearing granted.
Reversed and remanded.