On Further Rehearing. The application for rehearing in this case is not rested on the theory that the opinion of the court erroneously states the law, but rather upon the theory that the court has misinterpreted the record. Counsel in argument state:
"Judge Brown holds that defendants estopped themselves by making a motion to exclude the evidence on the theory of a variance between the averments and proof. No such motion was made by the defendants. On the contrary, this was the contention of the state and the ruling of the trial court, and against which the defendants entered objection."
The utterances in the opinion were in response to the ruling of the trial court on the demurrers of the solicitor to the defendants' plea of former jeopardy, and for the purpose of showing that the contention of appellant's counsel is not sustained, we quote from the plea. The plea, after showing the former indictment setting it out in hæc verba (charging the defendant with the offense denounced by the first clause of the statute, wantonly or maliciously injuring a railroad), avers, among other things:
"The defendants pleaded not guilty to said offense, and were by the state of Alabama in due form of law jointly placed on trial before a jury of their country. And defendants further say that witnesses for the state [naming them] were examined in due form of law before said court and jury, and the evidence of said witnesses made out a case against the defendants for the malicious or wanton placing of an obstruction on the track of the Louisville Nashville Railroad Company in such manner as to render liable any engine or car running thereon to diverge or be thrown from the track (the offense denounced by the second clause of the statute), and the state rested its case; that the defendants moved the court to exclude the evidence from the jury, and said motion was argued by the counsel for the state and for the defendant, and the court announced that he thought the motion was well taken; thereupon the solicitor for the state moved the court to dismiss the case before the jury retired, and hold the defendants; that defendants objected to such order, and moved the court to instruct the jury to bring in a verdict for the defendants; that the court, against the objection and exception then made, rendered the following ruling and judgment, to wit [omitting caption]: 'Comes the state of Alabama, by its solicitor, and the defendant in person and by attorney into open court, and the defendant having heretofore been arraigned in open court, and having entered his plea of not guilty, and trial being entered upon, and it appearing to the court from the evidence that there is a variance between the allegations of the indictment and the proof, in this, that the indictment charges a malicious or wanton injury to the railroad of the Louisville Nashville Railroad Company, and the proof showing the malicious or wanton placing of an obstruction upon the track of said railroad in such manner as to render liable any engine or car running thereon to diverge or be thrown from the track, and the defendant not consenting to allow the indictment to be amended, the prosecution was dismissed before the jury retired, and it is ordered by the court that another indictment be preferred against the defendant,' " etc.
The plea then avers:
"The said jury was discharged from further deliberations upon the case, against the objection and exception of the defendants. Defendants aver that they are now charged in this present indictment with an offense which is based upon and is of the same transaction alleged in the first indictment aforesaid, all of which defendants are ready to verify," etc.
While this plea does not in terms aver that the motion of the defendants was rested on the ground that there is a variance between the averments and proof, it embodies the judgment of the court in response to the motion, which shows, at least by clear implication, that the motion was predicated on this idea, and the defendants will not be permitted to set up this judgment as establishing their immunity from further prosecution, and at the same time dispute its solemn adjudications. Moreover, in view of the facts stated in the plea, a motion to exclude the evidence on any other ground than of variance between the averments and proof could not have been made with any degree of good faith or seriousness. Aside from these considerations, one has but to apply the general rule that on demurrer the averments of the pleas will be construed most strongly against the pleader, and all doubtful intendments will be resolved against him, to read into the plea the averment that the motion was based upon the ground of a variance between the averments and proof. Scharfenburg v. New Decatur, 155 Ala. 651, 47 So. 95; Argo v. Sylacauga Merc. Co., 12 Ala. App. 442, 68 So. 534.
The plea of former jeopardy in Pierson v. State, 159 Ala. 6,48 So. 813, was sustained on the same principle as the plea in Hurst v. State, 86 Ala. 604, 6 So. 120, 11 Am. St. Rep. 79, that the defendant had been tried and acquitted under an indictment for the same act which constituted a violation of two distinct statutes, and in this case, if the defendants had allowed the case to proceed to a verdict on the first trial, a plea of former jeopardy could have been sustained, but to sustain the plea on the showing here made would amount to a nullification *Page 639 of the statute which provides against just such contingencies.
We find no merit in the application, and it is therefore overruled.
Application overruled.