¶1dissenting. The defendant was indicted on June 29, 1948, on two counts/ Count 1 charged forgery; count 2 chai’ged uttering a forged instrument. In the trial on November 9, 1948, the defendant was acquitted on count 1, but was convicted on count 2 and sentenced thereon. This conviction was reversed by this court on July 26, 1949, in Vaughn v. State, 79 Ga. App. 724. The defendant was thereupon reindicted on September 30, 1949, for uttering a forged instrument. This second indictment did not contain count 1 of the former indictment upon which the defendant had ben acquitted on the first trial, but contained count 2 of the former indictment upon which the defendant had been convicted. On October 6, 1949, the defendant was again convicted of the crime of uttering a forged instrument, sentence was imposed, and the defendant appealed to this court.
¶2*131On the first writ of error, as reported in Vaughn v. State, supra, this court held that the evidence did not sufficiently connect the defendant with the forged check which was cashed so as to warrant his conviction of uttering or passing a forged check. As the defendant had moved for a new trial from the conviction of uttering a forged check under count 2 of the first indictment and the new trial was granted, the case for uttering a forged check, under the second indictment, stood “ 'on the docket for trial at the next term as though no trial had been had, subject to the rules for continuances provided in this Code.’ Code, § 70-401.” Underwood v. Heath & Co., 64 Ga. App. 180 (12 S. E. 2d, 464). This is true notwithstanding that, under the law of the case as laid down by the appellate court when reversing the conviction of the defendant in the trial court and granting a new trial, the defendant at whose instance the new trial w'as granted may, under the evidence adduced upon that trial, be entitled as a matter of law to an acquittal. Scott v. Powell Paving Company of North Carolina, 43 Ga. App. 705 (159 S. E. 895). Although the evidence in a criminal case may as a matter of law preclude the defendant’s conviction in a case, it does so only as respects the trial at which the evidence was given. Scott v. Powell Paving Company of North Carolina, supra.
¶3The fact that the defendant had been reindicted and put on trial for the same crime of uttering a forged check did not change the situation. I think that the evidence on the first trial by reason of its introduction in that trial did not operate as a matter of law to preclude a conviction upon the subsequent trial here. With reference to count 1 of the indictment upon which the defendant had been found not guilty of forgery— under the circumstances here, even though the defendant was acquitted of the act constituting forgery, if relevant (and I think it was relevant to show intent, scheme, etc.), the State could show that the defendant committed the criminal act of forgery, but it would be error to allow in evidence the indictment for such other crime, to wit, the indictment for forgeiy upon which the defendant had been acquitted, as being proper evidence tending to prove intent, scheme, etc.; yet if the act which constituted the crime of forgery was relevant to the issue then on *132trial, of uttering a forged instrument, to show intent, scheme, etc., the criminal act of forgery could be shown by evidence aliunde the first count of the first indictment, notwithstanding the defendant was acquitted - on that count in the first indictment. Lee v. State, 8 Ga. App. 413 (69 S. E. 310).
¶4In the instant case, I think that the evidence objected to in special ground 1 was admissible for the purpose of showing intent, scheme, etc.
¶5The defendant was previously acquitted of forging the check, and adjudicating in the instant case that the defendant was guilty of uttering such forged check is not adjudicating that the defendant did participate in such forging of the check, for it does not necessarily follow that, because the defendant himself did not forge the check, he did not utter such check, as forged by someone else. Harris v. State, 193 Ga. 109. This case is distinguished on its facts.
¶6concurring specially. The indictment on which the defendant was first tried charged him with forging in the first count, and with uttering the same instrument, knowing it to have been forged, in the second. For the sake of clarity, inasmuch as the question whether someone other than the defendant forged the instrument is eliminated, I shall treat the indictment as alleging that the defendant forged the check and uttered the check which he himself forged, because the issues would be the same under the indictment as it is written, if the evidence showed that the defendant uttered the instrument which he also forged.
¶7•The defendant’s contentions in this case are predicated on the proposition that the jury adjudicated in the first trial that the defendant did not as a matter of fact forge the instrument. Whether that is true or not depends on whether two separate and distinct crimes were charged in the indictment, or two grades of one offense. If two crimes were charged, the defendant’s contentions are correct because in that event a verdict of not guilty on the first count meant that the jury had investigated and found on the facts charged in the first count. However, if two grades of the same crime were charged in the indictment, and a conviction was allowable on only one count, a verdict of not guilty on the first count would not mean that *133the defendant was found not to have committed the acts charged therein where the verdict was guilty on the second count, because the verdict of guilty on the second count is consistent with the fact that the defendant did commit the .acts charged in the first count. Since only one crime was charged, a conviction of the greater grade automatically called for an acquittal of the lesser grade of offense. It is settled in my mind that the indictment charged only one crime and charged two grades of the same offense, and there was in reality only one verdict rendered. Thomas v. State, 59 Ga. 784; Long v. State, 12 Ga. 293; Miller v. State, 60 Ga. App. 682 (4 S. E. 2d, 729); Bulloch v. State, 10 Ga. 47 (50 Am. D. 369); Blount v. State, 11 Ga. App. 239 (74 S. E. 1099); 37 C. J. S. 111, § 108; 23 Am. Jur. 698, §51. The rationale of these authorities is that, where an indictment charges the forgery and uttering of the same instrument, only one intent is involved, and there cannot under the law be but one crime if the defendant committed all the acts charged. But regardless of what the law is, if the trial court submitted the case to the jury on the first trial as involving-two separate crimes, and authorized the jury to return a verdict of guilty on both counts, the case as to the defendant would be the same as if the law had authorized the action of the court, because in such a case the jury would have actually adjudicated the facts in finding a verdict of guilty on the first count instead of entering such a verdict as a legal consequence of finding a guilty verdict on the second count. There is no showing by the defendant that the court on the first trial submitted the case as two separate offenses, and the presumption ordinarily would be that the court treated the evidence as showing two grades of the same offense; and it would follow that, when a new trial was granted, the . entire verdict, which was in fact one Under the presumption above, was set aside, and the defendant could not complain that he was being put in jeopardy twice for the same offense when he has had the previous judgment set aside on his own motion. However, under the decision of this court in reversing the first conviction, it is the law of this case that the defendant was tried as for two separate and distinct offenses, one for forging and one for uttering the identical *134check. The judgment in that case could have no other foundation or support.
¶8Since this court has necessarily ruled that the defendant has been tried and acquitted of forging, he cannot be put in jeopardy again for the offense of uttering the same instrument after having forged it, which is a different grade of the same offense of which he was acquitted.