PRICE, Presiding Judge.
This prosecution originated in the Justice of the Peace Court. The affidavit charged defendant "did violate the bait
The applicable provisions of the Statute are:
In the circuit court the solicitor filed a complaint charging that defendant did "take or catch shrimp in quantities greater than 5 pounds for bait, in closed waters of Mobile Bay." During the trial the solicitor was allowed, against defendant's objection, to amend the complaint by adding, "or did have in his possession more than 5 pounds of such shrimp while alone in a boat."
In a prosecution based upon an affidavit and warrant it is sufficient to designate the offense by name, or by words from which it may be inferred. Glenn v. State, 26 Ala.App. 264, 158 So. 198; McDaniel v. Cain, 159 Ala. 344, 48 So. 52.
A complaint is amendable by leave of the court, if a new and different case is not introduced. Tatum v. State, 66 Ala. 465; Perry v. State, 78 Ala. 22.
We are of opinion a different offense was not charged here. The possession of the shrimp was embraced in the charge of taking or catching them. Clonts v. State, 19 Ala.App. 130.
Moreover, Section 56 of Title 8, Code 1940, provides that on appeal to the circuit court, or court of like jurisdiction, from a conviction in the justice of the peace court for a violation of the provisions of the game and fish laws the case shall be tried de novo, on the original affidavit and warrant.
In Cusimano v. State, 31 Ala.App. 99, 12 So.2d 418, the court said:
See also Noah v. State, 38 Ala.App. 531, 89 So.2d 231.
The affidavit was not void. No question was raised as to its sufficiency before the Justice. Smith v. State, 73 Ala. 11; Laney v. State, 109 Ala. 34, 19 So. 531; Nicholas v. State, 32 Ala.App. 574, 28 So.2d 422.
Mr. Payne, a sea-food warden for the State of Alabama, testified the defendant was alone in a boat on the Mobile River. He did not see him take any shrimp out of the water but he had ten pounds of shrimp in his possession. On cross-examination he stated the offense was committed South of Pinto Island between Pinto Island and Sand Island and East of McDuffie
It is insisted in brief that defendant was entitled to the following requested charges because of the failure to prove venue:
Refused charge 6, the general affirmative charge, was not predicated upon failure of proof as to venue. Circuit Court Rule 35, Code 1940, Title 7 Appendix.
Refused charges 8 and 9 are not hypothesized on belief from the evidence. Bush v. State, 211 Ala. 1, 100 So. 312; Patterson v. State, 38 Ala.App. 166, 81 So.2d 344; Noah v. State, 38 Ala.App. 531, 89 So.2d 231.
For the error pointed out the Judgment is Reversed and the Cause Remanded.
Reversed and remanded.