Melton v. State

121 So. 443, 23 Ala. App. 90, 1929 Ala. App. LEXIS 79

Opinion

SAMEORD, J.

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.