
    21331.
    B’GOS v. THE STATE.
    Decided April 14, 1931.
    Adhered to on rehearing, June 9, 1931.
    
      Aaron Kravitch, for plaintiff in error.
    
      Walter C. Eartridge, solicitor-general, Julian Eartridge, contra.
   Broyles, C. J.

The accused was tried under an accusation containing two counts. The first count charged the carrying on of “a lottery.” The second count charged the carrying on of “a scheme and device, other than a lottery, for the hazarding of money.” There was a general verdict of “guilty,” which, of course, meant guilty on both counts of the accusation.

The evidence in the ease showed one scheme and device only, and it is obvious that the accused could not be guilty under both counts. If a person stole one animal only, he could not be guilty of stealing a horse and also guilty of stealing some animal other than a horse.

The verdict was contrary to law and the evidence, and the refusal to grant a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

ON REHEARING.

Broyles, 0. J.

Our ruling here is that where an indictment in two counts charges a violation of one statute in two different ways which are inconsislenl with each other, where one transaction only is involved, a general verdict of guilty is not good, although the evidence may sustain one of the counts. This ruling is not contrary to the decisions in Innes v. State, 19 Ga. App. 271 (91 S. E. 339), and in the other cases cited in the instant motion for a rehearing, when those decisions are construed in the light of their particular facts and are stripped of their obiter rulings.

Judgment adhered to.

Luke and Bloodworth, JJ., concur.  