Opinion
8 Div. 779.
March 26, 1929.
Appeal from Circuit Court, Madison County; Paul Speake, Judge.
Charlie Melton was convicted of violating the prohibition law, and he appeals. Affirmed.
The record shows that the prosecution was begun by affidavit; that demurrer to the affidavit was sustained, whereupon the state filed an "Amendment to Affidavit" dated September 11, 1928.
The judgment entry recites the sustaining of demurrer to the original affidavit (charging that defendant did "buy, sell, or have in his possession illegally, give, barter, exchange, receive, deliver, carry or ship prohibited liquors," etc.), whereupon: "The State asks leave to amend affidavit by striking out the word 'buy.' Defendant objects to amendment. The court allows the amendment to affidavit and defendant objects to the amendment. Thereupon defendant moves the court to strike the new or amended affidavit. Ordered by the court that the said motion be and the same is overruled. Thereupon the defendant by his attorney files plea of misnomer to the amended affidavit and the solicitor for the State moves the court to strike same because filed too late. Upon consideration of said motion it is ordered and adjudged by the Court that the said motion be and the same is sustained."
E. D. Johnston, of Huntsville, for appellant.
After a wholly defective affidavit has lain in the files for more than one year, it is too late then to amend. Bowen v. State, 21 Ala. App. 547, 110 So. 56; Barnes v. Huntsville, 18 Ala. App. 646, 94 So. 188; Code 1923, §§ 4931, 4946.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
When there is a difference in the recitals in the record proper and the bill of exceptions, the recitals in the record proper must govern in all matters properly appearing in the record proper. Bruce v. Citizens' National Bank, 185 Ala. 221, 64 So. 82; McDaniel v. State, 10 Ala. App. 79, 64 So. 641. The record proper shows that affidavit filed September 11, 1928, was an amendment of the original affidavit made September 10, 1927, and on which the warrant was issued.
The rulings of the court respecting the affidavit are affirmed on the authority of Bell v. State, 21 Ala. App. 550, 109 So. 900; Richardson v. State, 21 Ala. App. 639, 111 So. 202. In the Bowen Case, 21 Ala. App. 547, 110 So. 56, the affidavit was void and charged no offense, and the same was true in Barnes v. City of Huntsville, 18 Ala. App. 646, 94 So. 188.
The right to file a plea of misnomer was waived. McBride v. State, 19 Ala. App. 471, 98 So. 135.
We find no error in the record, and the judgment is affirmed.
Affirmed.