dissenting. 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.
*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.
The 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).
In the instant case, I think that the evidence objected to in special ground 1 was admissible for the purpose of showing intent, scheme, etc.
The 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.