The plaintiff in error insists that the maximum penalty under the Penal Code, §1042, could not be legally imposed on him, as the fact of the former conviction was not set out in the indictment and fouud by tbe jury. Where the second conviction changes the grade of the offense, or authorizes a higher penalty than could otherwise have been imposed, the former conviction enters as an element into, the new offense, and must be alleged as *57a necessary part of the description and character of the crime intended to be punished. State v. Hines, 26 Ga. 614; Cobb’s Dig. 827. Under the code the punishment for the second offense does not exceed that which might be legally imposed for the first conviction ; and had the judge, without the aid of this section, sentenced the prisoner for the longest term, there would be no right in this court to control his discretion. In mercy to the defendant the law will not require the first conviction to be set out in the indictment, or allow it to be proved. Such allegation and proof would naturally tend to his prejudice. It would in effect tend to prove bad character, a fact which the law will not ordinarily allow to be shown unless the defendant himself tenders the issue. After conviction, if it is sought to show that the maximum penalty must be inflicted, the court may satisfy himself by an inspection of the previous record, act on his own knowledge, or hear evidence to satisfy himself as to the identity of the person. In this manner the purpose of the law may be subserved without multiplying the issues and embarrassing the defendant on his second trial.
One who stands near by and watches while his confederate breaks and enters a house and steals therefrom is guilty of burglary as principal iu the second degree. The act of one is the act of both, and principals in the first and second degree being punished alike, no distinction need be made in the indictment. Leonard v. State, 77 Ga. 764; Collins v. State, 88 Ga. 347; Penal Code, §§ 42, 43.
The rights of the parties should not be affected by the acts of a witness where he has been put under the rule, returns to the courtroom, and hears the testimony of other witnesses, nor does he by so doing render himself incompetent to testify. He may be subject to attachment for contempt; but to exclude him might deprive a party of the testimony of the only person by whom a fact in issue could be established. Rooks v. State, 65 Ga. 230; May v. State, 90 Ga. 800. In the present instance the witness had not been summoned, but was the codefendaut in the custody of an officer, and the solicitor-general did not know he would be used as a witness at the time the others retired. The preliminary proof was sufficient to admit the confession by the prisoner, and the verdict was sustained by the evidence.
Judgment affirmed.
By five Justices.