*292Dissent.
Jackson, J.I am unable to agree with the determination reached by the majority opinion herein and dissent thereto.
This is an appeal from a judgment convicting appellant of “Violation of the 1935 Narcotic Act, (As Amended).”
Appellant was charged by affidavit in two counts as aforesaid, filed October 23, 1963. He waived arraignment, entered a plea of not guilty, waived trial by jury, and permitted the cause to be tried to the court. Appellant was represented by William Wurster, Public Defender. Trial was had December 5, 1963, and the court having heard the evidence, found the defendant guilty of Count One of the affidavit. After pre-sentence investigation, judgment was entered against appellant, sentencing him to the Indiana State Reformatory for not less than two (2) nor more than ten (10) years and imposing a fine of $1.00 and costs.
The affidavit filed herein, in pertinent part, reads as follows:
“. . . KIRBY CRAWLEY who, being duly sworn, upon his oath says that VAUGHT SPIGHT on or about the 28th day of May, A.D. 1963, at and in the County of Marion in the State of Indiana, did then and there unlawfully and feloniously have in his possession and under his control, a certain narcotic drug, to-wit: Marihuana, and was not authorized by any law of the United States of America, or the State of Indiana, to have such narcotic drug in his possession and control, then and there being. . . .
“COUNT TWO:
“The affiant aforesaid, upon his oath aforesaid, further says that the defendant VAUGHT (sic) SPIGHT on or about the 28th day of May, A.D. 1963, at and in the County of Marion in the State of Indiana, did then and there sell a certain narcotic drug, to-wit: Marihuana, to one Ernest Jack Haley, and was not authorized by any law of the United States of America or the State of Indiana to sell such narcotic drug, then and there being . . .”
Appellant filed his motion for a new trial herein, pro se. The motion encompasses six typewritten pages of transcript *293and basically charges that appellant was not adequately and properly represented by pauper counsel. A portion of the motion for new trial is also taken up with questions relating to the sufficiency of the evidence adduced by the State. Appellant also alleges certain errors of law occurring at the trial to-wit:
“4. For errors of law occuring (sic) at the trial, in this, to-wit:
“ (a) That the court erred in the finding thereof, in that upon finding the defendant ‘not guilty’ of count two, sale, the factual laws THERETO required the Court to thereafter find the defendant ‘not guilty’ of the lessor ‘incidental’ included offense of ‘possession,’ in that:
“(1) The Courts’ (sic) finding of not guilty of count two sale for entrapment, constituted a nullification of count one, possession, for it is merely an included count, statutorily provided, of the original statute aforesaid Burns’ 10-3519 to 10-3538A, incidental to the same offense.
“(2) That the Court having rendered aforesaid not guilty as the arrested act constituted entrapment, there can be no question but that count one for possession having any other verdict would invoke the doctrine of res judicata (sic) which is applicable to criminal trials, and while res judicata is related to double jeopardy and in certain cases may have an identical effect, it ‘may have determining effect’ in situations where double jeopardy is unquestionably inapplicable as in the instant case. In general, the doctrine ‘operates to conclude, those matters is issue which the verdict of the court of not guilty determined through the offense be different, see:
“Sealfron v. U.S. 332 U.S. 575, 68 S. Ct. 237, 92 L. Ed. 180.
“5. That the verdict of the court is contrary to law.
“6. That the verdict of the court is contrary to law, and is not sustained by sufficient evidence.”
Appellant’s assignment of error is the single specification,
“1. That the Court erred overruling the Appellant’s Motion for a New Trial.”
The evidence most favorable to the State may be summarized as follows: The witness Ernest Haley testified in es*294sence that he was acquainted with the appellant, that he was present in the court room on the day of the trial, and that on or about the 28th day of May 1968, he met the appellant, Spight, on Minnesota Street as he walked towards the Barrington Arms.. That a grille is located at Minnesota and Keystone, and as he approached the door Vaughn Spight was coming out and he asked him if he had any marijuana. Appellant stated “yes” and they walked to the edge of the parking lot and the witness gave him $3.00 and in return the appellant gave him a package of marijuana.
That witness was followed to the stand by a policeman by the name of Kirby Crawley who testified in substance, that he was a police officer of the City of Indianapolis on the 28th day of May 1963, and that on that date he saw the appellant Vaughn Spight. That he saw him in front of the Barrington Lounge -located at Keystone and Minnesota in the City of Indianapolis. That there he saw Ernest Haley, the witness who had heretofore testified, give Vaughn Spight three $1.00 bills and receive in return a small brown manila envelope. That he saw the money change hands, that he had previously given Mr. Haley the money with which to make the purchase and that he saw Spight give Haley the package. At that'time he identified State’s exhibit No. 1 as the small brown manila envelope that he received from Haley and that it was the same envelope that he saw Spight hand to Haley. That he initialed it and thereafter had the exhibit examined.
John F. Sullivan, a police officer of the City of Indianapolis, testified that he had been employed for 23 years, was assigned to the crime laboratory to do analyses of different things, that he had had experience with drugs and since 1946 had been actively engaged in the analysis of drugs. That he identified State’s Exhibit No. 1, that he made an analysis thereof and found the contents to be a substance known as marijuana.
•The appellant alleges in paragraph four of his motion for new trial that he was found “not guilty” of count two, the *295sale. The record shows that the court found appellant guilty of count one, but it is silent as to count two. When a verdict or finding is silent as to one count, that amounts to a finding of not guilty on that count. Smith v. State (1951), 229 Ind. 546, 547, 99 N. E. 2d 417; Ward v. State (1919), 188 Ind. 606, 607, 125 N. E. 397; Beaty v. State (1882), 82 Ind. 228, 229.
Appellant seeks reversal on the theory that the decision of the court is contrary to law and the decision of the court is not sustained by sufficient evidence.
The evidence of possession is inextricably tied to the alleged sale of marijuana, of which charge appellant was found not guilty. If appellant was not guilty of the sale, then there is no competent evidence in the record to substantiate the charge of possession.
Appellant’s Motion for New Trial on the grounds that the verdict of the court is contrary to law, and is not sustained by sufficient evidence should have been sustained.
The cause should be reversed and remanded with instructions to sustain appellant’s Motion for New Trial and for further proceedings not inconsistent with this dissent.
Note.—Reported in 226 N. E. 2d 895.