The appeal in this case is on the record without a bill of exceptions. The defendant was finally convicted in the circuit court under a charge brought under section 7423 of the Code of 1907. The prosecution was begun before a justice of the peace, and the warrant made returnable to the county court, from a conviction in which court defendant appealed to the circuit court.
It is insisted by appellant that the prosecution as first instituted charged a felony under section 7342 of the Code of 1907, and that in the county court by amendment the prosecution was changed to a misdemeanor under section 7423, and further, that an entirely different state of facts was set up by the amended affidavit.
In the absence of a bill of exceptions we cannot conclude that the original and amended affidavits referred to different matters, but must presume that the same transaction was the basis of both prosecutions.
If there was an entire departure effected by the amendment in the county court, and again in the circuit court, defendant should have objected first in the county court, and renewed the objection if necessary in the circuit court, to going to trial on the substituted charge. If the facts were as contended for by defendant in his brief, the trial court would no doubt have sustained an appropriate objection to the amendment had one been made at the proper time.
No question of jurisdiction is presented by the record. There is no special plea going to the jurisdiction of the court, nor evidence justifying the giving of the general charge on the ground that jurisdiction was not shown. There is no error in the record, and the judgment appealed from is therefore affirmed.
Affirmed.