dissents.
I respectfully dissent. I agree, with the majority opinion, that a crucial factual issue common to both the Murder trial and the Perjury prosecution was whether Conway left the Shady Lane Club, later returned and shot the victim. I find, after thoroughly reviewing the record, that was the single issue offered by the State in attempting to prove malice aforethought necessary for a First Degree Murder conviction. To require Conway to stand trial again on that issue will constitute double jeopardy. I do not believe a rational jury would have acquitted Conway on the murder charge had the State proved he left the Club to retrieve a shotgun.
In any instance where a general verdict is returned by a jury, no one apart from the jury can know with absolute certainty the weight the jury gave any particular testi*1358mony, or the reason they arrived at a particular verdict. To submit Conway to a trial on the Perjury charge, for the reasons given in the majority opinion that “it is impossible to know with any degree of certainty the basis for the jury’s failure to convict him of First Degree Murder”, misapplies the rule set forth in Ashe v. Swenson, supra. The trial judge, after reviewing the record, held that it will constitute double jeopardy to try Conway on the Perjury charge. I would affirm the trial court’s holding.