I fully concur in Judge Harper's opinion in the companion case of Ex parte Gray, this day decided on rehearing, to the effect that this habeas corpus proceeding is not a criminal case, and that this court can and should entertain the motion by the State herein for rehearing. The Constitution and statutes prohibiting a new trial to the State in a criminal case, are wholly inapplicable in my opinion.
I have again reviewed this case, and the Gray case, and my dissenting opinion in this, and the opinion of Judges Davidson and Harper on the original hearing, and I am confirmed in my opinion, that a rehearing should be granted and relator remanded to custody.