dissenting.
I dissent from two of the decisions made in this case.
1st. I think that the motion for a continuance, ought to have been granted.
V i e showing for a continuance was clearly sufficient, even *510if we concede, that the new presentment did not make a new case, but merely made a continuation of the old case; and it is quite questionable, whether this is a concession that ought to be made.
If then, the showing was sufficient; it was an error in the Court, to refuse the motion.
Does it not follow then, that a new trial ought to be granted ? It is said that it does not. It is said, that even if the evidence wanted by Griffin, had been in, it would not have been sufficient, to counterbalance the other evidence in the case, and therefore, that the verdict would have been, the same. But I am not sure of this. The evidence wanted'by Griffin, was that of a witness who would have sworn, that the letters purporting to be Griffin’s were not in his handwriting. Now, if those letters were not Griffin’s, the fact was one, conclusive to show, that the charge against him was false, and the result of most wicked contrivance. Would the absent evidence have been sufficient to prove this fact ? That evidence would have been, it is true, but the evidence of a single witness; and also, it would have had against it the evidence of four other witnesses; for four others swore, that they believed the letters to be in Griffin’s hand-writing; yet that evidence, might, I think, have been sufficient to raise a reasonable doubt, whether the letters were in his hand-writing. It might have been the evidence of a witness of high character, swearing from a familiar and long continued acquaintance with Griffin’s hand-writing. And if it had been, it would have sufficed, I think, to raise a reasonable doubt whether the letters were his. Because the evidence to show that the letters were his, though it consisted in the belief of four witnesses, was after all, rather weak. The four were Jones, Richter, sr., Martin and Campbell. Not one of these had any familiarity with Griffin’s handwriting.
Jones says ; “has seen defendant write several times, in the store"; has seen defendant write on the books, and on *511tags attached to watches.” This does not signify intimate acquaintance, with Griffin’s hand-writing. Besides, Jones’ testimony is to be taken with much suspicion. He confesses to having been engaged in a deep laid plan to “ trap” Griffin. Of course, then, he greatly desired Griffin’s conviction. He too, is a man who, when it was proposed to him, as he says, to rob a store, and then burn it, and with it, it might be, a whole town, instead of showing offence, coolly entered on the discussion of the reward, he was to get. And, then, he had been charged himself, with taking a breastpin from the store of the two young Griffin’s and giving it to one Snellings.
Richter, sr., says; “ Never saw defendant write. Received letter from defendant in 1853. Next letter received 8th October 1855. Judges of defendant’s hand-writing from those two letters.” The last of these two letters was one of those to be proved. This witness, then, had next to no acquaintance at all, with Griffin’s hand-writing. And he, too, was engaged in the plan to “ trap” Griffin.
Martin, says; “witness received two letters in 1853, from defendant.. He believed said letters to be from defendant. His knowledge of defendant’s hand writing is derived exclusively from said letters.”
Here again are very slight facts, on which, to base a belief of hand-writing.
As to Campbell: His belief was founded merely on a single letter to himself, and that but a letter of introduction.
The evidence, then, that the letters were Griffin’s, though coming from four witnesses, was far from strong. I can conceive of evidence coming from a single witness that would be such as to be sufficient to balance, if not to overbalance it all.
I know, it may be said, that the circumstances are confirmatory of the evidence of the four witnesses ; the post-marks; the improbability that any one but Griffin, would take letters out of the post office addressed to him, and answer them in *512his name; the receipt of the box containing the key from the Express company. As to this last however, I may ask, why was it not shown, that Griffin delivered the box to the Express company. That would have made out the case against him, completely. And that this was not shown, is calculated of itself, to suggest a suspicion that the fact did not exist. But I make one general answer; contrivance could have manufactured all of these circumstances: and the case is one which authorizes us, to suspect contrivance.
I think, then, that the refusal of the motion to continue the case, was a sufficient ground to require the granting of a new trial.
2d. The Court was requested in substance, to tell the jury, that if Griffin’s intent was not to steal from the shop himself, but, by solicitation and bribery, to procure Jones to do it, he was. not guilty of an attempt to steal from the shop. And the Court I think, ought to have granted the request.
The general rule is, that if A. procures B. to commit a crime, it is not A. that commits the crime, .but B., and A. stands merely as B’s accessory.
And this rule is founded on both what is true in fact, and what is true in law.
Procuring another to commit a crime, is in fact a different thing, from committing it yourself. Different words are needed to express it; different proofs, to establish it. It is also a different thing in law. The Penal Code, (2. Div.) when it speaks generally, declares, that he who perpetrates, (i. e. commits,) the crime, shall be a principal; and, that he who procures, counsels or commands the crime to be committed, shall be but an accessory. And when the code speaks more specially, (1. Div.) the only exceptions it makes to the rule, are, cases in which, the actual perpetrator is an infant under ten, an idiot, a lunatic, the wife of the procurer, his slave, or is some one acting in fear of him. In these cases, it makes the procurer of the crime, stand as its actual perpetrator. *513And therefore it may be said, that in these cases, it is he who in law, commits the crime.
It is true, then, that, except in these special cases, if A. procures B. to commit a crime, it is not A. that commits the crime, but B., and A. stands only as B’s accessory.
But if this be true, then it must equally be true, that, except in these special cases, if A. attempts io procure B. to commit a crime, and fails in the attempt, A. does not attempt himself, to commit the crime.
This is my conclusion. I know, that there stands opposed to it, a New York case, (4 Hill, 136.).
But first, what authority can a New York case be, on the construction of the Penal Code of Georgia. Secondly, that case is put on the maxim, qui facit per alium facit per se, and that maxim does not, as it seems to me, apply to such a case. It may be true, that who does by another, does by himself. But when A. procures B. to commit a crime, which of the two is it, “ qui facit ,” “ who- does ?” It is, in all cases, except the special cases aforesaid, B. and not A. It is, B. that is the doer, and that is accountable as such ; and A. is but the accessory.
The maxim it seems to me, can have no place in criminal law, at least none except in the cases aforesaid, in which, B. is an infant under ten; an idiot, &c. In every other case, it is B. qui facit, not A. B. in every other case, is a free agent, and has an independent intention of his own to do the act which he does do. Accordingly, in all law, as far as I know, he ranks as the principal, not as any man’s agent.
The request, then, should, I think, have been given in charge by the Court.
I doubt, whether the letter of Richter, and the conversations held in the absence of Griffin, were admissible against Griffin ; but I am not prepared to say, that I think, their admission would, by itself, require the granting of a new trial.