White v. State

Gregory, Justice.

Glen McCord was indicted on June 11, 1984 for the murder of Douglas Little. He was found guilty of voluntary manslaughter in a jury verdict rendered August 14, 1984. The appellant, Sandra White, was then indicted on April 22, 1985 for the murder of the same victim by aiding, abetting, encouraging and counselling the commission of the crime. On August 16, 1985 she was found guilty of voluntary manslaughter. In the meantime McCord had appealed his conviction to the Court of Appeals which reversed on the basis of an erroneous charge. McCord v. State, 176 Ga. App. 505 (336 SE2d 371) (1985). Since the same charge was given in White’s case the trial court granted her a new trial. On remand the case against McCord was tried again, resulting in a verdict of not guilty on February 7, 1986. White then filed a motion in limine seeking an order permitting the introduction in her trial of a copy of McCord’s indictment and verdict of acquittal. The trial court denied the motion but granted a certificate of immediate review. The Court of Appeals affirmed, holding the acquittal irrelevant in White’s case. White v. State, 181 Ga. App. 354 (352 SE2d 205) (1986).

As is apparent from the foregoing recitation, the question before us is whether the acquittal of the principal is relevant evidence on the issue of the guilt or innocence of one charged as a party to the crime under OCGA § 16-2-20 (a) and (b) (3), (4)? We hold that it is.

The State relies on OCGA § 16-2-21 which provides: “Any party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that he was a party thereto, although the person claimed to have directly committed the crime has not been prosecuted or convicted, has been convicted of a different crime or degree of crime, or is not amenable to justice or has been acquitted.” But this misses the mark. White does not contend the acquittal of McCord bars her own prosecution. (Clearly the Code provides otherwise.) She contends proof of the guilt of the principal is a necessary element in the crime of one who does not directly commit the crime but is charged as an aider, abettor, encourager or counsellor in the commission of the crime. The acquittal of the principal is some evidence she did not aid, abet, etc. We agree. It is relevant. There may be numerous reasons why a defendant is acquitted other than his own innocence, but one reason he might be acquitted is his innocence. We consider the test of relevancy is the question, “. . . does the evidence offered render the desired inference more probable than it would be without the evidence?” McCormick on Evidence, 2nd ed. § 185, p. 437. The desired inference here is that White is not guilty. *237That inference is more probable in light of evidence of McCord’s acquittal than it would be without evidence of McCord’s acquittal.

Judgment reversed.

All the Justices concur, except Weltner and Hunt, JJ., who dissent.