Where, under an indictment in two counts, charging separate and distinct offenses, the jury returns a general verdict of guilty, and there is no evidence to authorize a verdict of guilty on one of the two counts, it is error to refuse a motion for a new trial based on the ground that the general verdict is unauthorized and contrary to law.
In an indictment in two counts, John Sullivan was charged with having committed two misdemeanors, in that he "did have, control, and possess more than one quart of spirituous, distilled, vinous, and alcoholic liquors and beverages as defined by the act of the General Assembly of Georgia, approved Feb. 3, 1938, the County of Bartow not being one of the counties of Georgia within which such named liquors and beverages might be legally sold and transported under the tends of said act of the General Assembly of Georgia . . . And . . . did . . . have, control, possess, conceal, store and convey, vinous, malt, alcoholic distilled and spirituous liquors and beverages, as defined by the act of the General Assembly of Georgia, approved Feb. 3, 1938, upon which the State tax and license fee due the State of Georgia had not been paid and which did not bear the tax stamp required by the act of the General Assembly of Georgia, approved February 3, 1938." A general verdict of guilty was returned against the defendant and his motion for a new trial, based upon the usual general grounds and one special ground, was overruled and he excepted.
In Fitzgerald v. State, 82 Ga. App. 521
, 527 (61 S. E. 2d, 666), in construing language almost identical with that in count 1 of the present indictment, this court held the accusation in that case to specifically charge a violation of Code (Ann. Supp.) 58-1077; and the court also held in that case that, where the evidence demanded the finding that the liquor possessed and controlled by the defendant was non-tax-paid and was possessed and controlled in a dry county, a verdict of guilty of violating Code (Ann. Supp.) 58-1077 was unauthorized citing Pierce v. State, 200 Ga. 384
(37 S. E. 2d, 201), and the same case in 73 Ga. App. 627
(37 S. E. 2d, 431). The evidence in the present case demanded a finding that all the liquor which the defendant was charged with possessing in a dry county was non-tax-paid, and the verdict finding him guilty of a violation of Code (Ann. Supp.) 58-1077 was unauthorized. The language of the indictment in Pierce v. State, supra, which this court held to state a violation of Code 58-201, and not a violation of Code (Ann. Supp.), 58-1077, was materially different from that used in the Fitzgerald case and the present one.
While there was ample evidence to authorize the jury to find that the defendant was guilty of possessing non-tax-paid liquor as charged in count 2 of the indictment, the jury returned a general verdict of guilty, which meant, under our law, guilty of both of the separate and distinct offenses charged in the indictment. Driver v. State, 112 Ga. 229 (4) (37 S. E. 400). Since, as we have indicated, a verdict of guilty under count 1 was not authorized, the general verdict cannot stand, and the trial court erred in overruling the motion for a new trial. Simmons v. State, 162 Ga. 316 (134 S. E. 54), and citations. See especially Tooke v. State, 4 Ga. App. 495 (3) (61 S. E. 917).
Since the case must be remanded for a new trial, and the alleged error in the charge of the court is not likely to recur on such new trial, we do not here consider special ground 1 of the motion for new trial.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.