Horn v. State

117 So. 286, 217 Ala. 677, 1928 Ala. LEXIS 99

Opinion

BROWN, J.

The correct practice would seem to have required the solicitor to file a complaint following the charge made in the original affidavit, and on this complaint, though severance had been granted to this appellant, both defendants could have been separately tried.

Offenses of this character are several as well as joint, and one defendant may be convicted and the other acquitted. Therefore the failure of the solicitor to file a complaint charging the defendants jointly relieved the state of none of its burdens, and imposed on the defendant no great burden. Crawford v. State, 112 Ala. 1, 21 So. 214; White v. State, 12 Ala. App. 160, 68 So. 521.

In the light of this rule of law and the facts stated in the opinion showing that the evidence offered related only to the offense as charged in the original affidavit, the Court of Appeals properly applied the doctrine of error without injury. ,

Writ denied.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.