Waldrop v. State, 6 Div. 291.
| Decision Date | 01 August 1946 |
| Docket Number | 6 Div. 291. |
| Citation | 27 So.2d 264,32 Ala.App. 496 |
| Parties | WALDROP v. STATE. |
| Court | Alabama Court of Appeals |
F. R. Ingram, of Birmingham, for appellant.
Wm N. McQueen, Atty. Gen., for the State.
The original affidavit filed in Jefferson County Court of Misdemeanors charged that 'L. C. Waldrop, 2225 Arlington Ave. Birmingham, Ala. whose name is otherwise unknown to affiant, within twelve months before making this affidavit in said county did keep on his premises at 2225 Arlington Ave. So. in Jefferson County 50 or more chickens which said chickens created or caused a public nuisance prejudicial to the health and comfort of or was offensive to the senses of ordinary citizens or was likely to become a menace to the public health contrary to and in violation fo Title 22 Section 75 of the 1940 Code of Alabama against the peace and dignity of the State of Alabama.'
The Solicitor's complaint is as follows: 'The State of Alabama by its Solicitor, complains of L. C. Waldrop * * * That, within twelve months before the commencement of this prosecution, he did keep on his premises at 2225 Arlington Avenue South, in Jefferson County, Alabama, Fifty or more chickens in such a manner as to make it a menace, or likely to become a menace to the public health, contrary to and in violation of Title 22 Section 75 of the 1940 Code of Alabama against the peace and dignity of the State of Alabama.'
The prosecution in this case was begun in the Jefferson County Court of Misdemeanors, and was based upon affidavit and warrant, wherein the defendant was charged with a violation of Title 22, Section 75, Code of Alabama 1940. From a judgment of conviction in said court, an appeal was taken, and perfected, to the circuit court. He was there tried upon a complaint filed by the solicitor which complaint was based as for a violation of the identical statute, supra, i. e. Title 22, Section 75, 1940 Code of Alabama.
The appeal here is upon the record proper, from which it appears that before pleading to the complaint in the circuit court the defendant filed a motion in writing to strike the solicitor's complaint upon the following grounds: '1. There is a fatal material variance or departure between the original affidavit and the original warrant of arrest.
'2. There is a fatal material variance or departure between the original complaint in the lower court and the Solicitor's Complaint in this Court.
'3. The Solicitor's Complaint fails to charge a criminal offense against the Defendant.
'4. In this court the Defendant by the Solicitor's Complaint is charged with a crime different from that of which he was originally charged.
'5. The Solicitor's Complaint fails to state an act of commission or omission against the peace and dignity of the State of Alabama.
Said motion to strike was overruled and denied by the trial court, and defendant duly reserved exception to this action of the court.
Defendant thereupon filed demurrers to the complaint and assigned the following grounds:
'1. The same does not state an offense against the State of Alabama.
'2. The allegation does not sufficiently set out an offense the doing of which constitutes an offense against the peace and dignity of the State of Alabama.
'3. The same does not charge the Defendant of any violation of the...
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...22, § 75, has been before the Court of Appeals and there held to be sufficient as against a like ground of demurrer. Waldrop v. State, 32 Ala.App. 496, 27 So.2d 264. In the opinion of the Court of Appeals in the instant case the Waldrop case is expressly overruled, upon the conclusion that ......