Evans v. State ( 1965 )

Pannell, Judge.

A general verdict of guilty, upon an accusation containing two counts charging different offenses, which are in fact as well as theory, separate transactions, cannot be sustained where there is no evidence to support one of the counts. Morse v. State, 10 Ga. App. 61 (72 SE 534); Jones v. State, 27 Ga. App. 600 (110 SE 37); Brooks v. State, 27 Ga. App. 629 (109 SE 548); Lee v. State, 32 Ga. App. 333 (123 SE 40).

Upon application of the above rule to the present case, where the defendant was charged with selling nontax-paid whiskey and with the illegal sale of beer, and the only evidence was as to the sale of beer, and it does not appear that the jury was restricted solely to the consideration of the charge of illegal sale of beer, and the verdict was “guilty as charged,” the judgment of affirmance heretofore entered is, on motion for rehearing, vacated and a judgment of reversal entered in accordance with the above rulings.

Judgment reversed.

Nichols, P. J., and Eberhardt, J., concur. Decided March 24, 1965. Casey Thigpen, for plaintiff in error. Thomas A. Hutcheson, Solicitor, contra.