At the October term, 1906, of the Newton Circuit Court, the grand jury returned an indictment against the defendant, charging him with violating the Local Option Law. The indictment was in four counts. The first count alleged the sale of intoxicating liquors on the 6th of October, 1906; the second count, on the 5th day of October, and the third and fourth counts, on the 3rd day of October.
The trial was had before a jury, resulting in a conviction on the first count, and a punishment of a fine of $1000 assessed, and an acquittal on the second, third and fourth counts.
The defendant appealed to the St. Louis Court of Appeals, and that court held the indictment insufficient, and discharged the defendant. The case is reported in the 130 Mo. App. 171, 108 S. W. 1077.
After the discharge of the defendant, the prosecuting attorney, on the 17th day of April, 1908, filed an information in said circuit court, charging that the defendant, on the 6th day of October, 1906, sold intoxicating liquors, to-wit; whisky, wine and beer, without *705any legal authority, and further charging that the Local Option Law was in force in said county at the time of said sale, and also alleging the former indictment and the proceedings thereon.
The allegations concerning the previous indictment were put in the information, for the purpose of showing that the statute of limitations had not run against the State. This information, we find to be in proper form. The defendant, in addition to the plea of “not guilty,” filed a special plea of former acquittal.
Alter introducing testimony of the former indictment, the verdict and mandate of the court of appeals -thereon, and after offering the evidence of the adoption of the Local Option Law, the plaintiff called three witnesses to give evidence touching the sale of intoxicating liquors by the defendant. Two of these witnesses testified that they purchased beer of the defendant in 1906, and a short time before the indictment was returned. These witnesses also testified that when the defendant was tried on the former indictment, they were witnesses and gave the same testimony. The other witness called by the State, testified that he purchased intoxicating liquors of the defendant in 1906. There was no evidence that he testified at the former trial.
The local option election was ordered on the second day of May, 1904, and to be held on the 8th day of June, 1904. There was offered in evidence in behalf of the defendant, a certified copy of an order made by the board of aldermen of the city of Granby, stating that one O. O. Hudson had been, by ordinance, duly appointed to take the census of the inhabitants of the city of' Granby, and that said Hudson had made and filed his report and return as such census enumerator, showing that the city of Granby contained a population of 2557 inhabitants on said day, and declaring that the result of said census showed that the city of Granby had within its corporate limits, 2557 inhabitants, and *706ordered that the result be spread upon the records and journals of the city. This order was filed with the county clerk on the 4th day of June, 1904, and was accompanied by an affidavit of said Hudson as to the discharge of his duty as such census enumerator. The court excluded this testimony, and its action is assigned as error. In view of the final disposition made of this case, it will not be necessary to discuss the legality of the local option election in Newton county.
Section 2873, Revised Statutes 1899, reads: “When a defendant shall have been acquitted upon a trial, on the merits and facts, and not on any ground stated in the last section, he may plead such acquittal in bar to any subsequent accusation for the same offense, notwithstanding any defect in form or substance in the indictment upon which such acquittal was had.”
On the former trial of the defendant, he was acquitted on three counts of the indictment, and convicted on one only. The State could not try him again for the offenses alleged in the three counts of the indictment on which the jury returned a verdict of not guilty.
Our attention has been called to State v. Keating, 122 S. W. 699, and it is claimed that what we have just said is in conflict with the opinion of the Supreme Court in that case. When the Keating case is carefully considered, there is no conflict. In that case, the information was in two counts, and the defendant was only convicted on the second count, and that conviction was reversed and remanded with leave to file an amended information. The court held, the defendant was acquitted of the charge attempted to be alleged in the first count by failure of the jury to find a verdict on that count. The court held that count bad, and -of course, as the defendant was acquitted on a charge in that count, the only possible figure that an indirect acquittal could work, was whether the charge was included in the second count, and therefore, the second *707count was barred by tbe verdict of tbe jury on tbe first count. -Tbe court held tbe second count was not included in tbe first, and the conviction on tbe second count, tbe information being bad, did not preclude a further prosecution on tbe charge attempted to be set forth in tbe said second count. Tbe statute does not apply where there was a conviction, but only where there was an acquittal on tbe merits and tbe facts. The Keating case, under its own • peculiar facts was correctly decided, notwithstanding the statute.
In tbe present case, however, we are dealing with tbe fact that tbe defendant was acquitted after a trial on tbe merits, and so far as we can ascertain, tbe same testimony was offered at tbe trial from which this appeal was taken, that was offered at tbe trial wherein tbe result was an acquittal.
When tbe case was retried, two of tbe witnesses who bad testified at tbe former trial, were used by the State, and as tbe jury only found tbe defendant guilty on one count at tbe former trial, then tbe testimony of one of these witnesses, at least, must have been for an offense for which a jury bad found tbe defendant not guilty. A witness was permitted to testify who bad given no evidence at tbe former trial, and therefore, the verdict of guilty at tbe former trial could not have been found upon bis testimony. At tbe time tbe information was filed, tbe Statute of Limitation had run against tbe offense that it was sought to prove by this witness. There is no possible way to ascertain whether tbe former jury found tbe defendant not guilty as to tbe sales it was sought to prove by tbe two witnesses, who were used at both trials. And on a retrial of tbe case, it will be impossible for a' court or jury to determine as to what sale, testified to by tbe different witnesses on tbe first trial, the verdict of guilty was based on. If tbe case Avas to be retried, the verdict of tbe jury would necessarily be based on mere conjecture and not on evidence, and tbe verdict, having no other *708support than conjecture, is illegal and will not be permitted to stand in a criminal case. [State v. Wilson, 89 Mo. App. 184; State v. Stephens, 70 Mo. App. 554.]
It cannot be said that on a retrial, the State will be permitted to get witnesses who have never been used on the former trial, because this information is a special one, and only intended to charge the identical offense attempted to he charged in the first count of the indictment. The information shows on its face that the dates of the alleged sales were more than a year prior to the filing of the information, but it is sought to preserve the offense as against the Statute of Limitations, by alleging the proceedings on the former indictment. For the reasons assigned, we reverse the case and discharge the defendant.
All concur.