In the opinion handed down herein we said: "Defendant, and others unknown, charged in the first count of the Information with burning the dwelling house as principals, have been acquitted and have passed out of the case as principals." The defendant, John Fabiano, has been acquitted, for he alone was on trial, but not so as to the others, for they, being unknown, were not on trial, and therefore the verdict of not guilty could have no reference to them, but to Fabiano alone. The reference, in the opinion, to the acquittal of persons unknown, was merely inadvertence, for it is patent to every lawyer that a person, not on trial, can be neither acquitted nor convicted. This inadvertence, however, does not affect the opinion or decree, but, since our attention has been called to it on the application for a rehearing, we have deemed it best to expunge the expression from the opinion. No rehearing is necessary for that purpose.
With the making of this correction in the opinion, the rehearing is refused. *Page 990