If the affidavit made before the mayor of Elba, upon which this prosecution was begun, charged any offense (and as to this we do *Page 481 not commit ourselves), it was one against the laws of the state.
After appellant's conviction before the said mayor on this charge, and after his appeal had been taken to the circuit court, the complaint upon which he was tried in the circuit court was filed, charging him, not with a violation of any state law, but undertaking to charge him with the violation of an ordinance of the city of Elba.
As said by the late learned Mr. Justice Denson for the Supreme Court in the opinion in the case of Lewis v. State,160 Ala. 121, 49 So. 753, 754: "We know of no law authorizing such a radical departure as this record reveals," etc.
For the error in overruling appellant's motion to strike the complaint filed in the circuit court, the judgment is reversed, and the cause remanded. Other questions apparent will not be considered.
Reversed and remanded.