
    (98 South. 488)
    (6 Div. 339.)
    COLLINS v. STATE.
    (Court of Appeals of Alabama.
    Dec. 18, 1923.)
    1. Jury &wkey;>25 (6) — Demand for jury held too late. ,
    Where judgment of conviction for misdemeanor was rendered in county court on January 30, 1923, and defendant was allowed 5 days in which, to appeal to the circuit court under Loe. Acts 1919, p. 121, § 30, and on February 3d he gave notice of appeal, and on February 7th a certified transcript of the proceedings in the county court was filed with the clerk of the circuit court, the appeal was taken on February 3d, and a demand for a jury, made on March 8th, more than 30 days thereafter, came too late, under Gen. Acts 1915, p. 939, § 2.
    2. Criminal law <&wkey;260(l3) — Error to try defendant in circuit court on affidavit made in county court.
    Where, on appeal to circuit court from 'county court, no complaint or information was filed by the solicitor, as required by Oode 1907," § 6730, and defendant was tried on the original affidavit made in the county court, it must be held that there was reversible error, in the absence of a waiver appearing in the record.
    Appeal from Circuit t Court, Jefferson County; Walter B. Jones, Judge.
    Lewis E. Collins was convicted of obtaining tbe sum of $10 by false pretenses, and appeals.
    Reversed and remanded.
    M. B. Grace, of Birmingham, for appellant.
    Defendant was deprived of bis constitutional right to trial by jury, and judgment should be reversed. Const. 1901, § 11; Lewis v. State, 123 Ala. 86, 26 South. 516; Curlee v. State, 16 Ala. .App. 62, 75 South. 268.
    Jim Davis, Sol., of Birmingham, for tbe State.
    Tbe demand for trial by jury not having been made w.ithin tbe time required by law, it was properly denied. Acts 1915, p. 939; Loc. Acts 1919, p. 129; Kreutner v. State, 16 Ala. App. 553, 80' South. 127; Benjamin v. City of Montgomery, 16 Ala. App. 653, 81 South. 145; McCaig v. State, 16 Ala. App. 581, 80 South. 155; Ex parte McCaig, 203 Ala. 699, 83 South. 927.
   FOSTER, J.

Tbe prosecution was commenced in tbe Jefferson county court of misdemeanors. Judgment of conviction was rendered in tbe county court on January 30, 1923. Tbe defendant was allowed 5 days in which to appeal to tbe circuit court. Local Acts 1919, p. 121, § 30. On February 3d the defendant, gave notice of appeal. On February 7th a certified transcript of the proceedings in tbe county court was filed with tbe clerk of tbe circuit court. The appeal was taken on February 3d. The demand for a jury was made on March 8th, more than 30 days thereafter, and came toa late. Acts 1915, p. 939, § 2. .

Tbe cause was tried in the circuit court on the original affidavit made in tbe county court. No complaint or information was filed by tbe solicitor, as required by section 6730, Code 1907. There is nothing in tbe record to show a waiver by the defendant of the filing of such complaint or information.

In tbe absence of this statement required by statute, or a waiver appearing in the record, it was error to put tbe defendant to trial on tbe original affidavit. Moss v. State, 42 Ala. 546; Haynes v. State, 5 Ala. App. 167, 59 South. 325; Kirkhan v. State, 18 Ala. App. 426, 93 South. 56; Peeples v. State, 17 Ala. App. 430, 84 South. 859; Perry v. State, 17 Ala. App. 80, 81 South. 858; Howard v. State, 17 Ala. App. 9, 81 South. 345.

For the errors above indicated, the judgr ment of the circuit court is reversed, and the cause is remanded;

Reversed and remanded.  