¶1The defendant Avas tried by a justice of the pcia.ce for the violation of section 5505 of the Oode •of 1890 a,s amended by the act of 1901, page 1215, upon an affidavit made before him, and upon a AATtrrant issued hv and returnable to him. 'ftp had no jurisdiction to try the case, except as a committing magistrate, and as such bind him' over to the next, term of the county court of Elmore county. The legal (effect of binding the defendant over Avas, that he await the action of the grand jury, am! until he was indicted, he could not haAre been tried upon said charge by the countjr or circuit court.
¶2*95The act creating the county, court of Elmore, county, 1898-99 page 257, does not dispense with the necessity of an indictment in cases similar to this one. The county court, not having jurisdiction to try this case upon the affidavit, the prosecution should have been dismissed.'
¶3The judgment of the county court is reversed'and one is here rendered discharging the defendant.