I am of the opinion that the process upon which this appellant was finally tried and convicted was a clear departure from the original complaint upon which this prosecution was first instituted. The record discloses that the prosecution was begun by affidavit of one W. P. McSwean, Jr., before J. N. Pollard, justice of the peace, which charged this defendant and another, one Ben Head, with the joint commission of the offense complained of. The warrant was made returnable to the county court, and from a judgment of conviction in the county court an appeal was taken to the circuit court. In the circuit court the solicitor filed a complaint, charging this appellantalone with the commission of the offense, and over defendant's seasonable objections, made by motion to quash, by demurrer to the complaint, and by objection to being put to trial on the complaint filed by the solicitor, the defendant was put to trial. Having originally charged a joint commission of an offense, the solicitor was without authority to change said charge, by charging this defendant alone with the offense complained of. On appeal to the circuit court, the cause was to be tried de novo, and the accused was not called upon, or could he be expected to answer any offense, other than that originally charged, and as to which, from a judgment of conviction thereon, he appealed. It could not be assumed that the accused could be prepared to meet or to defend any accusation or charge other than the one originally preferred. The manifest departure complained of most certainly lessened the burden originally assumed by the state and should not have been allowed. On the original charge, before the state was entitled to a conviction, it was necessary to prove that both appellant and his codefendant, Head, pointed the pistol at the prosecutor. In the charge as contained in the complaint, no burden rested upon the state to prove that any person other than appellant pointed the pistol at the prosecutor. This being true, the charge contained in the original prosecution was different from the charge contained in the complaint, and the charge in the complaint was a complete departure from the original affidavit. I regard the insistences of the appellant as being tenable, and fully sustained by numerous authorities. Brasher v. State *Page 462 (Ala.App.) 112 So. 5351; Elliott v. State, 26 Ala. 78; McGehee v. State, 58 Ala. 360; Thomas v. State, 111 Ala. 51, 20 So. 617; Townsend v. State, 137 Ala. 91, 34 So. 382.
When two or more defendants are jointly charged, they may be tried, either jointly or separately, as either may elect. A severance, however, operates only as a separate trial; it cannot be taken as a means of changing the character of the original charge, as was done in this case.
I am of the opinion that the application for rehearing should be granted, and that the affirmance should be set aside; also that the judgment of conviction be reversed, and a judgment here rendered, discharging this appellant from further custody in this proceeding.
1 Ante, p. 79.