State v. Jackson ( 1897 )

Ellison, J.

Defendant was tried and convicted in the Daviess circuit court on an indictment containing two counts — one charging him to be a druggist and pharmacist and selling intoxicating liquor without a prescription, while the other charges him generally, as selling without having .a license as a dramshop keeper or other authority to sell. The trial was before the court without a jury and a general finding that the defendant was guilty was made without specifying which count. This was erroneous. State v. Bedell, 35 Mo. App. 551. In State v. Pitts, 58 Mo. 556, it was said that where “several counts relate to the same transaction, and are found on different sections of the statute to meet the exigencies occurring at the trial, then a general finding, which does not exceed in the punishment which it assesses, the maximum of that specified in any section on which any count is based, will be permissible, and afford no ground for arresting the judgment based thereon.” But this language must not be understood as meaning that a general finding may be had on several counts charging altogether separate and distinct offenses. In the present case the offenses charged are not only wholly distinct and the punishments radically different, but the charge m one count alleges defendant to have acted in a capacity, in doing the act, which is different from that charged in the other count, the difference in the capacity alone in which the act was done making a different offense. The judgment will be reversed and cause remanded.

All concur.