The opinion
OpimoN on Petition to Rehear
Mr. Justice Humphreys.
A Petition to Rehear has been filed with the Court, and after due consideration, we are of opinion it should be denied.
The arguments, made by the petitioner were either made at the time or were available to him when the case was before the Court. And, on this last point, such new arguments as have been advanced are upon authority this Court considered in arriving at its. opinion, except as to the recent case of Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970), which overruled Hoag v. New Jersey, 356 U.S. 464 , 78 S.Ct. 829 , 2 L.Ed.2d 913 (1958), and applied the federal rule of collateral *720 estoppel, as embodied in the Fifth Amendment guaranty against double jeopardy, to the states.
However, after due consideration of Ashe, the Court is of opinion it has no application to the question whether there has been double jeopardy where the first indictment is void for variance.
The petition to rehear argues the cases Young et al. v. State, 185 Tenn. 596 , 206 S.W.2d 805 (1947); Brown v. State, 186 Tenn. 378 , 210 S.W.2d 670 (1948), and Wilson v. State, 200 Tenn. 309 , 292 S.W.2d 188 (1956), are factually distinguishable from the present case. This is true. However, these cases were cited by the Court simply to show the viability of Hite v. State, 17 Tenn. 357 (1836). So the distinguishment of these cases from Hite is of no consequence.
While we commend the diligence of defense counsel, and the valor with which his argument is presented, we cannot agree therewith and as- indicated, deny the petition to rehear.
Dyer, Chief Justice, and Chattin, Creson and Me Canless, Justices, concur.