dissenting. In Parham v. State, 3 Ga. App. 468 (2) (60 S. E. 123), it was said: “Where an indictment charges one offense committed in different ways, in several counts, a conviction on one or more of the counts, supported by sufficient legal proof, will be upheld. A proper conviction on one count will not be set aside because of an unwarranted conviction on another count. The verdict on the latter can not harm the defendant; for the punishment is the same whether the conviction is sustained on one count or on more than one count.” That was a prosecution for perjury. In Stewart v. State, 58 Ga. 577, the indictment was for murder, containing six counts. One ground of the motion for a new trial was that the verdict did not indicate or specify on which count it was found. The court held there was no error in overruling this ground. It was said that there was but one felony charged in different ways in several counts. If the evidence at the trial should not show that the defendant was guilty under either count, then he could not be hurt; but if the evidence at the trial showed that he was guilty as charged in any one of the counts of the indictment, then he might lawfully be found guilty. In Dohme v. State, 68 Ga. 339, the indictment was in two counts. The first charged the defendant with a misdemeanor, to wit, maintaining a gaming-house; the second charged that he knowingly rented said house for gaming purposes. The second headnote was: “Where an indictment contained two *320counts, one charging the keeping of a gaming-house, the other the renting of rooms for the purpose of gaming, a general verdict of guilty was sufficient without specifying on which count it rested.” Citing the Stewart case, 58 Ga., and other authorities. In Nobles v. State, 98 Ga. 73, at p. 78 (26 S. E. 64, 38 L. R. A. 577), the indictment contained two counts, both charging murder, but in different ways. There was a general verdict of guilty. The court held that the offense of murder in both degrees is punishable alike in this State, and affirmed the judgment.
In Williams v. State, 107 Ga. 693 (33 S. E. 641), the accused was tried on an accusation containing two counts, the first charging the selling of spirituous and intoxicating liquors, and the second charging the defendant with contracting to sell and soliciting the sale of such liquors. It was contended that the accusation was fatally defective, because it charged against the defendant two distinct offenses. This contention was overruled by this court, citing Lynes v. State, 46 Ga. 208, and Dohme v. State, 68 Ga. 339. In the opinion it was said, with regard to the Dohme case: “It was held that a general verdict of guilty was sufficient without specifying upon which count it rested.” The judgment was reversed because the evidence failed to make out a case of guilt under either count of-the accusation. In Bashinski v. State, 123 Ga. 508 (51 S. E. 499), it was held that an indictment containing two counts, one charging the defendant with maintaining a gaming-house and the other with knowingly renting the house for that purpose, is not open to demurrer on the ground of misjoinder of separate and distinct offenses. This case cited the Dohme case, and reiterated the holding there made that a general verdict of guilty was sufficient. In Fry v. State, 141 Ga. 789 (82 S. E. 135), it was said: “Where there were four counts in an indictment, all charging the commission of the same felony, but in different ways, a general verdict of guilty was not contrary to evidence if any one of the counts was supported by proof, and it was not necessary that the verdict specify upon which count it was rendered.” Citing Stewart v. State; Dohme v. State, supra, and Williams v. State, 69 Ga. 11.
Similarly, in Berrien v. State, 156 Ga. 380, headnote 7 (119 S. E. 300), this court said: “Where an indictment contains several counts and there is a verdict of guilty on two of them, each of *321the two counts being based upon a different section of the code, and each of the code sections providing for a different punishment, and where the verdict does not fix separate terms of punishment for the different counts, but only fixes one maximum and minimum term, which is within the limits of punishment that could be imposed under either count; . . the judgment overruling the motion for a new trial may be affirmed if the conviction on either count is legal.” Citing Stewart v. State, 58 Ga. 577; Parham v. State (supra); Gailliard v. State, 16 Ga. App. 195 (84 S. E. 837); Dohme v. State, supra.
If Driver v. State, 112 Ga. 229 (supra), laid'down a rule difrent from what has been stated above, it must yield to older cases. In this case it was held: “A general verdict of guilty upon an indictment containing three counts, the first charging the accused with keeping a gaming-house, the second with keeping a gaming-table, and the third with gaming, being in effect a finding of guilty of all the charges set forth in the indictment, is not sustainable when there is no evidence of guilt as to the charges set forth in the first and second counts.”
“On the trial of all criminal cases the jury shall be judges of the law and facts, and shall give a general verdict of ‘guilty’ or ‘not guilty.’ Verdicts are to have a reasonable intendment, and are to receive a reasonable construction, and are not to be avoided unless from necessity.” Penal Code (1910), § 1059. The two counts charged a misdemeanor, one with possessing prohibited liquors, the other with the sale of such liquors. 11 Park’s Code Supp. 1922, § 448(c). These are not offenses of a separate and distinct nature nor of a character radically different. They both charge a violation of the prohibition law in different ways, and are subject to one punishment. Without deciding- whether two separate punishments could be inflicted where there is a valid conviction on two such counts, it can be said that, so far as our experience and observation extends, the practice in this State has been to inflict one punishment whether the conviction is on one or more counts.