Evidence as to' the 1952 lottery episodes, had it been offered on the trial of the defendant on the remaining counts of the indictment with counts 1, 2 and 3 stricken on demurrer (as they should have been but were not) would have constituted reversible error as to the whole ease. Bacon v. State, *298209 Ga. 261 (71 S. E. 2d 615). The demurrers to the first three counts having been erroneously overruled, these counts, although treated during the trial as subsisting, were in fact a nullity and gave no rights to the State which it would not otherwise have had. Accordingly, applying the rule in the Bacon case, the admission over objection of evidence relating to other criminal transactions than those for which the defendant was legally on trial deprived her of her right to a fair trial as to the whole case.
It is contended, however, that this rule should not be applied where the jury did not in fact return a general verdict of guilty, but returned a special verdict as to each count. None of the cases cited, or which the court has been able to find, is decisive of this question. In Roberts v. State, 14 Ga. 8, there was a two count indictment, both counts referred to the same transaction and the evidence necessarily referred to a single transaction and not separate criminal transactions. In Berrien v. State, 156 Ga. 380 (119 S. E. 300), the two counts apparently referred to different transactions, but as to one of them the evidence was insufficient to support a conviction. In the present case the evidence was sufficient to show the defendant guilty of separate criminal transactions for which she was not legally on trial under the three defective counts. Howard v. State, 211 Ga. 186 (2) (84 S. E. 2d 455) most nearly approaches, without deciding, this question. There as in the Berrien case there was a multiple-count indictment charging various related offenses. Separate verdicts were rendered, and it was held that the reversal as to certain counts because there was insufficient evidence to support the verdict would not carry a reversal as to the good counts, the court stating: • “While such indictments may be justly condemned as preventing a fair trial, yet it is not as hurtful to the accused to allow the fury to hear evidence falling short of proving embezzlement as it is to hear evidence proving it.” (Emphasis added.)
We are dealing here with the accused’s right to a fair trial. She waived nothing; she insisted upon her demurrer to the defective counts, and, because of an error in the court’s ruling, she was forced to allow evidence against her which, but for such error, would clearly have been reversible. The distinction is *299pointed up in Sutton v. State, 122 Ga. 158, 160 (50 S. E. 60): “The general rule is, that where there are several counts in an indictment, a general verdict of guilty is valid if there be one good count, though the others are defective, the presumption being that the verdict was rendered on the good count, and not on the defective ones. This general rule does not apply, however, when there are two counts in an indictment, one good and the other fatally defective, and where a demurrer to the defective count has been improperly overruled.” (Emphasis added). It is true that there the further distinction is drawn between general and special verdicts, but only a general verdict was under consideration in that case.
Where the several counts in an indictment refer to the same transaction, a reversal as to one would not, under the rule set out here, reverse the good counts. It is only where bad counts are used, intentionally or otherwise, over the objection of the defendant, as a means of introducing evidence of other criminal transactions which is not otherwise admissible, that the entire trial become infected to the extent that it cannot be determined whether the verdict as to the good counts was itself influenced by the illegal evidence. As pointed out in the Howard case, 211 Ga. 186, supra, this does not obtain where the evidence as to other criminal transactions is insufficient to establish guilt. But where, as here, the evidence admitted over objection is both improperly admitted and is itself sufficient to establish guilt of another crime, and where its admission in the first instance is due to the error of the court in overruling the demurrer, the whole case must be reversed. To decide otherwise would be to hold that the error of the trial court in overruling the demurrer precluded the defendant from insisting upon the subsequent error of admitting illegal evidence. Such a rule would have neither justice nor logic.
The trial court erred in denying the motion for new trial as to every count thereof.
Judgment reversed.
Felton, C. J., Quillian and Nichols, JJ., concur. Gardner, P.J., and Carlisle, J., dissent.