
    (133 So. 741)
    HILL v. STATE.
    6 Div. 839.
    Court of Appeals of Alabama.
    Feb. 10, 1931.
    Rehearing Stricken April 7, 1931.
    J. B. Powell, of Jasper, for. appellant.-
    Charlie C. McCall, Atty. Gen., for the State.
   SAMPORD, J.

The prosecution originated in the county court, based upon an affidavit made by one Jim Daly, which charged an offense under section 3328 of the Code of 1923. On conviction in the county" court, the defendant appealed to the circuit court, where the solicitor filed a complaint charging an offense under section 49 of Acts 1927, approved August 23, 1927. Acts 1927, p. 365. The defendant moved to strike the complaint on the ground of a departure. The same question was raised by demurrer and objections to evidence.

The wording of the two statutes is different, and different penalties are fixed, so as to make it clear that a prosecution under the one would not lie under the other. It is also clear that the prosecution was begun under section 3328, supra, and that it proceeded in the circuit court on appeal; under Acts 1927, supra. This was a departure, and the motion to strike should have been granted. Echols v. State, 16 Ala. App. 138, 75 So. 814.

It becomes unnecessary to pass upon other questions presented. The judgment is reversed, and the cause is remanded.

Reversed and remanded.

On Rehearing.

The appellant having filed his brief as required on the original submission, and the state not having filed brief within fifteen days from such submission, the application for rehearing is stricken. Supreme Court Rule 38; Shirey v. State, 18 Ala. App. 109, 90 So. 72.

Application stricken.  