
    188 So. 274
    ADAMS v. STATE.
    8 Div. 709.
    Court of Appeals of Alabama.
    March 7, 1939.
    Rehearing Denied April 18, 1939.
    
      Motley & Motley, of Gadsden, for appellant.
    Thos. S. Lawson, Atty. Gen., and John J. Haynes, Asst. Atty. Gen., for the State.
   RICE, Judge.

We think, perhaps, the procedure adopted in this case might be sustained by virtue of Supreme Court Rule 45.

And on original submission we entered a judgment of affirmance, without opinion, on that theory.

But upon application, our judgment was set aside, and the cause restored to the docket.

Now, upon further consideration, we are yet of the opinion that the “procedure” might not work a vitiation of the judgment of conviction, because it was harmless, even though it was improper.

However, the judgment of conviction must he reversed because of a failure of the allegata to correspond to the probata —or vice versa, 'at one’s option.

Appellant was charged, throughout, vyith assaulting one“E. D. Vinyard.” The evidence shows, only, that he assaulted one “C. V. Vinyard,” with nothing to show that “E. D.” and “C. V.” were one and the same man. Manifestly, a judgment based upon such a situation cannot stand. And it is reversed; and the cause remanded.

Reversed and remanded.  