Jackson v. State, 54 Ga. 439

Jackson v. State

54 Ga. 439 | Ga. | 1875

McCay, Judge.

There is some little confusion in the books as to the use of a verdict of guilty or acquittal of the principal in the first degree on the trial of the principal in the second degree. It is decided in 28 Georgia Reports, 217, that the acquittal of the principal in the-first degree is not a bar to the trial of the principal in the second degree; whilst in 7 Georgia, 3, it is decided that the record of the conviction of the principal in the first degree is not only competent evidence against the principal in the second, but it makes out a prima facie case of his (the principal’s in the first- degree) guilt. The true distinction, we think, is this: the guilt of the principal in the first degree has ’to be established by the state. But the record is not conclusive pro or con, and for the reason that the defendant was not a party to the trial. The record either of conviction or acquittal may be denied. It goes in, for what it is worth, to show the fact of guilt or innocence, as any other fact, but it is not conclusive. The truth may be shown by *440either party. In this ease, under the ruling of this court in 8tudstill’s case, 7 Georgia, 3, the record of the conviction of the principal was used as evidence. What its effect was we do not know. That effect it has lost since a new trial has been had, and' he has been found not guilty. This is new evidence, discovered, nay happening, since the former trial. It would seem that the prisoner is entitled to a new trial as a matter of course.

Judgment reversed.