The prosecution was begun by affidavit in the Jefferson county court of misdemeanors. On January 30th judgment of conviction was rendered in the county court. February 3d defendant, acting under section 30 of the act creating the Jefferson county court of misdemeanors (Local Acts 1919, pp. 121, 129), gave notice of appeal to the circuit court of Jefferson county. On February 7th, the judge of the Jefferson county court, in compliance with section 6726 of the Code of Alabama, handed a certified transcript of the proceedings and judgment to the clerk of the Tenth judicial circuit. Under the local act, supra, the defendant was allowed 5 days in which to take the appeal. This he did on February 3d, being within the time. The transcript necessary to evidence the jurisdiction of the circuit court was not filed until February 7th, but none the less the defendant had taken his appeal, and from that time on any rights he had were to be litigated in the circuit court, and not in the county court, and his right to demand a jury trial, under Acts 1915, p. 939, § 2, dated from February 3d, and not from February 7th. Not having filed the demand for jury trial within 30 days, the trial court correctly held the right of jury trial to have been waived.
It appears, however, that in the circuit court the defendant was arraigned upon the affidavit made in the county court, when the statute Code 1907, § 6730, requires that, "the solicitor shall make a brief statement of the cause of complaint, signed by him." This does not appear from the record to have been done or to have been waived by the defendant. In the absence of this statement, so *Page 517 required by statute, or a waiver appearing in the record, this court, following the rule laid down by Walker, C.J., in the case of Moss v. State, 42 Ala. 546, has consistently held the omission to constitute reversible error. Haynes v. State 5 Ala. App. 167,59 So. 325; Kirkhan v. State, 18 Ala. App. 426,93 So. 56; Peeples v. State, 17 Ala. App. 80, 81 So. 858; Howard v. State, 17 Ala. App. 9, 81 So. 345. Other questions need not be decided.
For the error pointed out, the judgement is reversed, and the cause is remanded.
Reserved and remanded.