(concurring):
Some jurisdictions hold that when several distinct offenses are combined in a single count of an indictment, the accused may be found guilty as charged, but punishment cannot exceed the maximum for the more serious offense. State v. Littleton, 77 W Va 804, 88 SE 458; Benton v. Commonwealth, 91 Va 782, 21 SE 495; People v. Steelik, 187 Cal 361, 203 Pac 78, 82. However, apart from a nicety of procedure, there is no material difference between alleging two offenses in one count and stating them in separate counts. In either case, the allegations must be sufficient to set forth the separate offenses, and the proof must establish each beyond a reasonable doubt. The burden on the defense is exactly the same in both.
Conformity with normal procedures is desirable, but we should hardly insist upon form to the exclusion of common sense. Concededly the situation here is unusual, but the fact is that two offenses were alleged and two offenses were proven, without prejudice to any substantial right of the accused. Hence, I concur.