The opinion
On Application for Rehearing
JOHNSON, Judge.
The City contends that inasmuch as appellant went to trial in recorder’s court without challenging the sufficiency of the affidavit and warrant upon which trial was there had, and inasmuch as the language used in the complaint filed anew in circuit court on appeal was the same as the language used in the original affidavit, his objections raised by demurrer to the complaint in circuit court came too late.
We do not consider he waived his right to demur to the complaint in circuit court. In Worthington v. City of Jasper, 197 Ala. 589 , 73 So. 116 , we find:
“ * * * The affidavit on which the defendant was tried and convicted in the recorder’s court was not then assailed in any way. The defendant took an appeal to the circuit court, where the trial was de novo. * * * In the circuit court counsel for the city filed a statement undertaking to charge an offense under the ordinance.
“The original affidavit on which defendant was tried and convicted in the recorder’s court charged no offense within the penalty of the ordinance; but, since no objection was there taken by the defendant to the affidavit, he could not avail of its deficiency in the circuit court where, as stated, the trial was de novo. Turner v. Town of Lineville, 2 Ala.App. 454 , 56 South 603 .
“But when the ‘statement’ became in the circuit court the source of the charge on which he was to be tried, the defendant had a right to question its sufficiency by appropriate methods. This he did both by motion and by demurrer to the ‘statement.’ ”
On the trial de novo in the circuit court the complaint is the charge against the defendant and not the original affidavit. See Nailer v. State, 18 Ala.App. 127 , 90 So. 131 .
To respond further to the City’s brief in support of the application for rehearing would result in a rediscussion of the questions we treated in our original opinion.
Application for rehearing overruled.
CATES, J., not sitting.