Nelson v. State

[103] EVANS, J. (1, 2) This appeal is upon the record proper; no bill of exceptions having been filed herein. The prosecution of this case was instituted on affidavit before a justice of the peace, with a warrant returnable to the county court. The affidavit as originally drawn charged that defendant “did carry a pistol concealed about his person or on premises not his own or under his control.” The judgment entry shows that by leave of the court the affidavit was amended by striking out the alternative averment “or on premises not his own,” etc., and demurrers were refiled to the affidavit as amended. The record further shows an amended affidavit verified before the same justice taking the original. The objection and exception to the action of the trial court in allowing an amendment to the affidavit cannot be availed of by appellant in the absence of a bill of exceptions. — Campbell v. State, 150 Ala. 70, 43 South. 743; Bright v. State, 76 Ala. 96; Markland v. Albes, 81 Ala. 433, 2 South. 123. The action of the trial court in permitting the state to amend was free from error. — Rogers v. State, 12 Ala. App. 196, 67 South. 781; Hamilton v. State, 153 Ala. 63, 44 South. 968; Wright v. State, 136 Ala. 139, 34 South. 233; Code, § 6723. Where the affidavit was broad enough to cover either of two offenses laid in the alternative, defendant cannot be prejudiced by the striking of one of them. There is no reversible error in the record, and the judgment of the court below is affirmed. Affirmed.