State v. Moreno , 69 N.M. 113 ( 1961 )

NOBLE, Justice.

The defendant, Robert Moreno, was charged under § 54-5-14 and § 54-7-14 N.M.S.A. 1953 Comp, and tried before a jury on two counts: (1) illegal possession of marijuana, and (2) possession of marijuana with the intent unlawfully to sell and deliver it.

The trial court instructed the jury that it could find the defendant guilty of only one of the counts; they were to consider initially count (2) and only if they found him innocent of that charge could they consider count (1). The jury returned a verdict finding the defendant guilty of the second count — possession with intent to sell — and as instructed returned no verdict on the first count.

Reversal is urged on the ground that there is no substantial evidence to support the verdict of guilty of possession of marijuana with intent to unlawfully sell or deliver it. We have carefully examined the record and while there is ample evidence to support the charge of illegal possession under the first count of the information the ■record is completely devoid of any substantial evidence to support the conviction of possession with intent to sell marijuana. The conviction based on the offense of possession with intent to illegally sell and deliver cannot be sustained upon proof of illegal possession alone and the verdict and judgment based thereon must be reversed. State v. Romero, 67 N.M. 82, 352 P.2d 781; State v. Alls, 55 N.M. 168, 228 P.2d 952; State v. Walker, 34 N.M. 405, 281 P. 481; State v. Curry, 32 N.M. 219, 252 P. 994.

The effect of a reversal for lack of sufficient evidence to support a conviction is not different from an acquittal by the jury and requires that the defendant be discharged. Sapir v. United States, 348 U.S. 373, 75 S.Ct. 422, 99 L.Ed. 426; Compare, State v. Reed, 39 N.M. 44, 39 P.2d 1005, 102 A.L.R. 995.

Reluctant as we may be to discharge the defendant in view of the evidence sufficient to support a conviction of illegal possession of marijuana, we must do so nevertheless. The two counts of the information charged separate offenses, and the silence of the jury verdict as to the first count is equivalent to an acquittal as-to the offense charged therein, Jolly v. United States, 170 U.S. 402, 18 S.Ct. 624, 42 L.Ed. 1085; State v. Hickenbottom, 63 Wyo. 41, 178 P.2d 119; State v. Gorham,. 93 Utah 274, 72 P.2d 656; People v. Dowling, 84 N.Y. 478; Chadwick v. United States, 5 Cir., 117 F.2d 902, and operates as a bar to further prosecution on that count. People v. Dowling, supra;. Boyd v. State, 156 Ga. 48, 118 S.E. 705;. People v. Powers, 272 Mich. 303, 261 N.W. 543; Annotation, 114 A.L.R. 1406 at 1417.

The cause is reversed and remanded with instructions to set aside and vacate the verdict and the judgment and sentence based thereon and to discharge the defendant.

It is so ordered.

COMPTON, C. J., and CHAVEZ, J., concur. CARMODY and MOISE, JJ., not participating.