Opinion
6 Div. 350.
December 20, 1938. Rehearing Denied January 17, 1939.
Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler, Judge.
Sam L. Anthony was convicted of recklessly driving an automobile on public highway, and he appeals.
Reversed and rendered.
Morel Montgomery, of Birmingham, for appellant.
At the time of the alleged offense the Alabama Highway Code was in force and effect. Section 3328 of the Code of 1923 had been superseded and repealed by said Highway Code (Gen. Acts 1927, p. 348, § 49). Code, § 3328, being functus, a prosecution thereunder could not prevail, nor could a judgment of conviction be sustained. Pate v. State, 25 Ala. App. 208, 143 So. 208; McAulley v. State, 22 Ala. App. 263, 114 So. 631. It has been more than twelve months since the alleged offense was committed. A new prosecution would be necessary, and it is too late, under the law, to begin a new prosecution. A judgment discharging the defendant is proper to be entered by this court. Oldham v. Rogersville, 27 Ala. App. 218, 169 So. 331.
A. A. Carmichael, Atty. Gen., and A. L. King, Asst. Atty. Gen., for the State.
Both affidavit and complaint state a good charge under General Acts 1927, § 49, p. 348, and the trial was had under said act. Ala. Code 1928, § 1397 (51); Code 1923, § 3815; Slater v. State, 230 Ala. 320, 162 So. 130; Jackson v. State, 236 Ala. 75, 182 So. 83. If appellant was improperly sentenced to hard labor instead of jail sentence as additional punishment, the case should only be remanded for proper sentence. McAulley v. State, 22 Ala. App. 263, 114 So. 631; Thompson v. State, 16 Ala. App. 387, 77 So. 967.
Appellant was charged by affidavit, in the Jefferson County Court, of misdemeanors unmistakably with the offense denounced by Code 1923, Sec. 3328.
Upon his conviction, and appeal to the circuit court, he was tried upon a Solicitor's complaint, likewise, to all appearances, based upon the provisions of this Code, Section 3328.
But said complaint, unchallenged as it was by demurrer, was stated by the learned trial judge in his oral charge to the jury, to embody and set forth the offense denounced by Code 1928, Sec. 1397(51) — not glaringly different — but different — from Code 1923, Sec. 3328.
This fact, i. e., his Honor's said statement to the jury, might have induced us to hold that, as in the absence of demurrer said complaint was perhaps sufficient under the provisions of Code 1928, Sec. 1397 (51), the prosecution was, really, under said Code Section.
But when it came to the imposition of punishment the judge returned to Code 1923, Sec. 3328, and imposed the punishment there prescribed.
This leaves no doubt in our minds that appellant was charged, tried, and convicted under the terms and provisions of Code 1923, Sec. 3328, which Code Section, it has been specifically held by this court, has been superseded — repealed — by Section 49 of The Alabama Highway Code (Gen. Acts of Ala. 1927 pp. 348, 365) now found codified as Sec. 1397(51) of Michie's Alabama Code of 1928. Pate v. State, 25 Ala. App. 208, 143 So. 208.
It results that the judgment of conviction must be reversed; and, as no prosecution for the offense claimed can now be maintained, appellant might as well be discharged. And it is so ordered.
Reversed and rendered.