Trippe, Judge.
1. The defendant was jointly indicted with three others for larceny from the person. The jury first came in with a verdict finding the defendant “guilty as accessory after the fact.” The court directed them to return to their room, and if they found a verdict it must be guilty or not guilty. The verdict was rightly rejected by the court, because it was an illegal verdict under the indictment, as will be seen presently.
2. The verdict being an illegal one, the court had the power, and it was its duty to reject it, and to give the directions that were given: Williams vs. The State, 46 Georgia, 647.
*2893. Was the verdict illegal? “An accessory after the fact is a person who, after full knowledge that a crime has been committed, conceals it from the magistrate, and harbors, assists or protects, the person charged with or convicted of the crime:” Code, section'4308. This court has twice decided that on an indictment charging a defendant as principal in the first degreej or as the actual perpetrator of the crime, he cannot be convicted as principal in the second degree: Washington vs. The State, 36 Georgia, 222; Shaw vs. The State, 40 Georgia, 120. Granting, ex gratia, that in misdemeanors there may be accessories, on which, see Lewis vs. The State, 33 Georgia, 137, or that the accessory may be put on trial before the conviction of the principal, see Smith vs. The State, 46 Georgia, 298 — not even then, under the principle on which the decision in Washington vs. The State is put, could the defendant be convicted as accessory upon an indictment charging him as a real actor and perpetrator of the crime. In that case the ground on which the decision was placed, to-wit: that a defendant who is charged as the perpetrator of the crime, cannot be convicted as principal in the second degree, is “for the obvious reason that the accusation does not notify him that he will be held responsible for such acts as will make him a principal in the second degree, and therefore he is taken by surprise at the trial,” and “that he will have had no notice that lie will be required to meet such evidence or be prepared to rebut or explain it.” This will apply to the case of an accessory as well as that of a principal in the second degree. An examination of the sections defining the two classes of offenders will show this at once. Without determining whether there can be an accessory in misdemeanors, we say that under this indictment the first verdict returned by the jury was illegal, and was properly rejected by the court: 7 C. & P., 575.
4. Upon a second consideration of the case the jury returned a verdict of guilty, and the court refused to set iL aside on the ground taken in the motion for a -new trial, that it was contrary to the evidence. This is one of that irumerous class of cases wherein all we have to say on this point is, that we do *290not think it was such an abuse of discretion as to call for the interference of this court.
Judgment affirmed.