The defendant's application for rehearing was overruled by this court on October 19, 1916, during the first month of the present term, and that order is still in the breast of the court and subject to the control of the court. Minto v. state,9 Ala. App. 95, 64 So. 369; Ex parte Minto, 187 Ala. 671,65 So. 516; Ex parte Adams, 187 Ala. 10, 65 So. 514.
This court, in view of the suggestion in the opinion of Justice Sayre, of the Supreme Court, concurred in by Justice Thomas (Ex parte Addington, 76 So. 6), has re-examined the facts as presented by the record in this case, which are set out in the opinions heretofore promulgated by Judge Brown, and reported in 74 So. 846-861, and all concur that the evidence was not sufficient to warrant the defendant's conviction, and that the court erred in overruling the motion for a new trial. The order overruling the defendant's application is therefore set aside and vacated, the application is granted, the judgment of affirmance is set aside, and the judgment of the criminal court is reversed and remanded.
Reversed and remanded.