Opinion
4 Div. 388.
June 7, 1928.
Powell Hamilton, of Greenville, for appellant.
There was a clear departure from the original prosecution, and should not have been permitted. There could be no conviction of petitioner without evidence showing that he and Head jointly pointed the pistol at the prosecutor, as charged in the original affidavit. Elliott v. State, 26 Ala. 78; McGehee v. State, 58 Ala. 360; Townsend v. State, 137 Ala. 91, 34 So. 382; Brasher v. State (Ala.App.) 112 So. 535.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The correct practice would seem to have required the solicitor to file a complaint following the charge made in the original affidavit, and on this complaint, though severance had been granted to this appellant, both defendants could have been separately tried.
Offenses of this character are several as well as joint, and one defendant may be convicted and the other acquitted. Therefore the failure of the solicitor to file a complaint charging the defendants jointly relieved the state of none of its burdens, and imposed on the defendant no great burden. Crawford v. State, 112 Ala. 1, 21 So. 214; White v. State, 12 Ala. App. 160, 68 So. 521.
In the light of this rule of law and the facts stated in the opinion showing that the evidence offered related only to the offense as charged in the original affidavit, the Court of Appeals properly applied the doctrine of error without injury.
Writ denied.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.