There was an affidavit (complaint) upon which the appellant was tried in the recorder's court, charging the offense of which the appellant was convicted in the circuit court. Along with the transcript from the municipal court, this complaint was sent to the circuit court in consequence of the defendant's appeal thereto. In the circuit court the defendant (appellant) filed demurrer "to the complaint filed in said cause," and described the complaint, to which his demurrer was addressed, as "charging the defendant with the violation of a prohibition ordinance of the city of Montgomery." Since no other complaint, charging the violation of a prohibitory ordinance, than that sent up from the recorder's court appears in the record on this appeal, the quoted reference in the demurrer must have been to the original complaint upon which the defendant was convicted in the recorder's court. In the prosecution for the violation of a municipal ordinance the defendant may, affirmatively or by his conduct, waive his right to have a complaint or statement filed in the court to which the prosecution has been taken by appeal from the municipal court. McKinstry v. City of Tuscaloosa, 172 Ala. 344, 54 So. 629. On such appeal he may, expressly or by his conduct, consent to or acquiesce in his trial upon the original affidavit, and cannot then complain that a statement was not filed against him. Aside from the effect of the waiver necessarily made by this defendant's failure to demand, before entering on the trial, in the circuit court a written statement or complaint, the quoted expression from the caption of the demurrer evinced the defendant's willingness to be tried upon the original affidavit, the only complaint in the record that answers the description carried by the demurrer's caption. According to the record here, there was, to repeat, no ruling on the demurrer.
The rehearing is denied.
ANDERSON, C. J., and GARDNER and THOMAS, JJ., concur. *Page 200