Opinion
7 Div. 860.
November 19, 1946.
Appeal from Circuit Court, Calhoun County; Lamar Field, Judge.
Elbert Gamble was convicted of driving a motor vehicle on a highway while intoxicated, and he appeals.
Reversed and remanded.
John W. Vardaman, of Anniston, for appellant.
Wm. N. McQueen, Atty. Gen., and Jas. T. Hardin, Asst. Atty. Gen., for the State.
Appellant was charged with driving a motor vehicle on a highway of the State while intoxicated. The prosecution originated in the county court. Upon conviction there, appellant appealed to the circuit court.
The record discloses neither a statement of the case by the solicitor nor a waiver of same by the defendant below. That this mandatory requirement was not complied with is made certain by the clerk's response to the writ of certiorari issued by this court on petition of the Attorney General. The clerk certified "that no Solicitor's Complaint was filed and no waiver of the filing of said Complaint by the Appellant on file."
In the absence of a complaint, or a waiver thereto, the circuit court was without jurisdiction to proceed with the trial. The judgment below must, therefore, be reversed and the cause remanded. Title 15, Sec. 363, Code 1940; Stewart v. State, 26 Ala. App. 78, 153 So. 296; Bonds v. State, 28 Ala. App. 194, 180 So. 735; Hagamaker v. State, 21 Ala. App. 345, 108 So. 262.
Reversed and remanded.