The opinion
On Rehearing.
On rehearing the majority of the court are of the opinion that the conclusion reached by BROWN, P.J., in his dissenting opinion, and his reasons therefor, are correct, which results in the application for rehearing made by the state being granted, and that the judgment of reversal be set aside, and the judgment of conviction in the lower court be affirmed. In this the writer does not concur, but adheres to the original opinion as being correct, and is of the opinion that the plea of former jeopardy does not show any favorable action of the court at the instance of the defendant such as would estop the defendants from pleading that they had been formerly placed in jeopardy under a valid indictment for the same offense of which they were convicted on the second trial. To the contrary, the plea shows an adverse ruling to the defendants, *Page 638
to which ruling of the court they duly reserved an exception.
Other questions raised on this appeal are free from error.
Application for rehearing granted, judgment of reversal set aside, and judgment of conviction affirmed.
Application granted, reversal set aside, judgment of conviction affirmed.