The jury returned this verdict: "We, the jurors impaneled in the above case, find the defendant guilty of aiding, assisting, or abetting in pool selling, or of aiding, assisting, or abetting in receiving and registering a bet in money on the result of a horse race, as charged in the amended complaint."
The charge in the complaint is in the conjunctive. The verdict of the jury is in the disjunctive. It is that the defendant is found guilty of "aiding, assisting, or abetting in pool selling,or of aiding, assisting, or abetting in receiving and registering a bet in money on the result of a horse race." (Italics supplied.) There are two distinct offenses referred to in the verdict. Either the defendant was found guilty of aiding, abetting, or assisting in pool selling or of aiding, abetting, or assisting in receiving and registering a bet in money on the result of a horse race. From the verdict it does not appear of which of these offenses the jury declared defendant guilty. It is true that the acts constituting the two offenses may overlap each other, and when committed by one and the same person may constitute but one offense; but nevertheless one person can be guilty of one of the offenses, and not guilty of the other.
The plaintiff here, defendant in the court below, may have and could have aided and abetted, not only in selling pools, but also in registering wagers or bets made, and that would have constituted one offense. But here, according to the verdict the jury did not find that he did both. It found only that he did one or the other. From the verdict the court had no way of determining which; that is, of which of the two distinct offenses the defendant was found guilty. The general principle that a verdict in a criminal case must be certain and definite is recognized by all the authorities. State v. Reeves,276 Mo. 339, 208 S.W. 87. See, also, Sanders v. State,13 Okla. Crim. 134, 162 P. 676, and cases cited in the syllabus, the third paragraph of which reads: *Page 330
"The verdict of a jury must be sufficient in itself to clearly disclose the crime of which the defendant is convicted, and for which he is to be punished."
It is doubtless true that by the great weight of authority it is held that,
"where the statute makes either of two or more distinct acts connected with the same general offense, and subject to the same measure and kind of punishment, indictable separately and as distinct crimes, when each shall have been committed by different persons, and at different times, they may, when committed by the same person and at the same time, be coupled in one count as constituting all together but one offense." State v.Schweiter, 27 Kan. 506.
Further on in that same opinion it is said:
"In such cases, the several acts are construed as so many steps or stages in the same affair, and the offender may be informed against as for one combined act in violation of the law, and proof of either of the acts mentioned in the statute and set forth in the information will sustain a conviction."
Here, however, we have no such situation. We have a verdict stating that the accused is guilty of one or of the other of two distinct offenses, not that the accused is found guilty as charged in the information or complaint. The verdict is that the accused is guilty of one or the other of two offenses "as charged in the amended complaint."
The judgment imposing a fine or jail sentence in the alternative in this case was based, and necessarily must have been based, upon the verdict of the jury. The court had no authority, independent of the jury's verdict, upon which it could base a judgment imposing punishment. The verdict in this case not being definite and specific, and it being impossible to determine wherefrom what crime, if any, of which the accused had been found guilty, there was no authority or power by reason of such verdict under or upon which the trial court could impose sentence. It seems to me it must necessarily follow that the judgment of the district *Page 331 court of Salt Lake county, sentencing the accused to pay a fine, or, in default of payment of such fine, be confined in the county jail, was beyond the jurisdiction of that court, and therefore null and void.