¶1 In the absence of a complaint filed by the solicitor as required by section 3843 of the Code of 1923, or of a waiver by the defendant affirmatively appearing of record, the judgment in this case must be reversed. Owens v. State, 99 So. 155, 19 Ala. App. 573.
¶2 As this case must be reversed upon the ground above set forth, it is perhaps not necessary for this court to go further into a consideration of the questions presented; but for the guidance of the court upon another trial, if the evidence should remain the same as is disclosed by this record, the state will not have met the burden of proof as to this defendant, whatever may be the case as to Thomas and Newby, who were in a separate automobile and against whom there is additional evidence.
¶3 For the error pointed out, the judgment is reversed, and the cause is remanded.
¶4 Reversed and remanded.