This case was affirmed by this court on June 10, 1924. On June 25, 1924, application for rehearing was made, and on July 22d, at an adjourned term of this court, the application was overruled. On September 2, 1924, and while this court was still in adjourned session, the court ex mero motu, ordered the cause restored to the rehearing docket for further consideration of charge 2, refused to defendant on the trial in the circuit court. Petition for certiorari was applied for to the Supreme Court upon the overruling by this court of appellant's application for rehearing, which application was denied by the Supreme Court on October 6, 1924. 104 So. 774.
It is but fair to this court and to the Supreme Court to say that, neither in the original submission, nor in the application for rehearing, was the court's especial attention directed to the authorities controlling the proposition of law set out in refused charge 2, which we now proceed to consider.
Charge 2, refused to defendant, was held to be a good charge and its refusal to constitute reversible error in Mitchell's Case, 129 Ala. 26, headnote 17, 30 So. 348; McHan's Case, 20 Ala. App. 117,101 So. 81; Green's Case, 19 Ala. App. 239, 96 So. 651; Doty's Case, 9 Ala. App. 21; Bell's Case, 89 Miss. 810,42 So. 542, 11 Ann. Cas. 431, 119 Am. St. Rep. 722. This court, in McKenzie's Case, 19 Ala. App. 319, 97 So. 155, held a similar charge, there reported as charge G to be bad; and in the instant case on certiorari the Supreme Court (Ex parte State, etc., In re Jones, 104 So. 774) is in agreement with our holding in the McKenzie Case. After a consideration of these various decisions, the charge is held to be bad.