An Arizona grand jury returned an indictment against appellant and another reading as follows:
The grand jurors of the county of Pima, in the name of the state of Arizona, and by its authority accuse
ARCHIE LEE DOUGLAS,
CAROLYN ANN HUTTON
and charge that in Pima County:
COUNT ONE (UNLAWFUL OFFER TO SELL NARCOTIC DRUG)
On or about the 8th day of June, 1977, ARCHIE LEE DOUGLAS, and CAROLYN ANN HUTTON, offered to sell a narcotic drug, to wit: heroin, all in violation of A.R.S. §§ 36-1002.02 as amended, and 36-1002.10.
OR IN THE ALTERNATIVE
COUNT TWO (FRAUDULENT SCHEME OR ARTIFICE)
On or about the 8th day of June, 1977, ARCHIE LEE DOUGLAS, and CAROLYN ANN HUTTON, pursuant to a scheme or artifice to defraud, obtained from OFFICER JOHN PATZE money by false or fraudulent pretenses, representations or promises, all in violation of A.R.S. § 13-320.01.
Appellant’s motion challenging the alternative form of the indictment was denied.
The state offered evidence that: Undercover agents told appellant they wanted to buy heroin. Appellant left and later returned with eo-defendant Hutton who delivered three tinfoil packets to the agents in exchange for money. Tests established that the packets did not contain narcotics or dangerous drugs.
Both counts of the indictment were submitted to the jury. The jury was instructed if it found appellant guilty of unlawfully offering to sell narcotic drugs as charged in Count One, it should not consider the alternate charge concerning fraudulent scheme or artifice, but if the jury found appellant not guilty of unlawful offer to sell it should then consider the alternate charge in Count Two. The jury returned a verdict of guilty under Count One. The verdict forms as to Count Two were left blank.
After exhausting state remedies, appellant filed a petition for habeas corpus in the district court for the State of Arizona. The petition was denied. This appeal followed.
Appellant’s point is narrow. He concedes the two counts were properly joined. He also appears to accept the propriety of charging “alternate offenses . . . in order to allow for contingencies in proof.” Sutton v. United States, 434 F.2d 462, 473 (D.C.Cir.1970). The issue he seeks to raise is reflected in the ground upon which he distinguishes Fuller v. United States, 407 F.2d 1199, 1222 (D.C.Cir.1968) (en banc). Appellant argues that Fuller is distinguishable from the present case because Fuller only “allowed a prosecutor to charge premeditated murder and felony murder in separate counts of an indictment. Fuller did not permit the defendant be charged with having committed one crime or another.” As appellant argues, “The State confuses the meaning of charging a person with one thing and another with one thing or another.”
The cases cited by appellant involve alternative charges within a single count. United States v. Donovan, 339 F.2d 404, 406-07 (7th Cir. 1964); State v. Fowler, 174 Ohio St. 362, 189 N.E.2d 133 (1963). Inconsistent charges within a count have long been condemned, as the authorities cited by appellant hold. 2 Wharton’s Criminal Procedure § 291 at 126-27 (Torda ed. 1974).
If the jury is asked to return a single verdict on a count charging mutually exclusive offenses, there is no way to determine which charge the jury has sustained. Review in such a case would be difficult or impossible. See, e. g., Ex Parte Bell, ... 19 Cal.2d 488, 499-500, 122 P.2d 22, 29 (1942) (Traynor, J.) and cases cited therein; 2 Wharton’s Criminal Procedure, supra, § 291 & n.19.
This rule does not extend to cases such as this, where the inconsistent charges are made in separate counts. “The same offense may be charged, by several counts, as having been committed in different ways or by different methods, in order to anticipate and accommodate every possible contingency in the evidence.” Id. § 296 at 140. That is to say, the grand jury may charge both offenses if the evidence before it would justify either conclusion. The defendant is protected by the rule, which was applied in this case, that he cannot be convicted of both offenses.
This case is like the hypothetical put by the Supreme Court in United States v. Gaddis, 424 U.S. 544, 550, 96 S.Ct. 1023, 1027, 47 L.Ed.2d 222 (1976):
Situations will no doubt often exist where there is evidence before a grand jury . . . that a certain person participated in a bank robbery and also evidence that that person, though not himself the robber, at least knowingly received the proceeds of the robbery. In such a case there can be no impropriety for a grand jury to return an indictment . . . containing counts charging [robbery] as well as [receiving]. If, upon the trial . . . the [trial judge] is satisfied that there is sufficient evidence to go to the jury upon both counts, he must, under Heflin [v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959)] and Milanovich [v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961)], instruct the members of the jury that they may not convict the defendant [on both counts].
(Footnotes omitted.)
The indictment gave appellant adequate notice of the charges against him. U.S. Const, amend. VI. He was clearly charged with selling a package to the officer after representing that it contained heroin. Whether he was guilty of offering to sell a narcotic drug or obtaining money under false pretenses turned upon whether he believed the bags, procured by his partner, contained heroin.
The two charges described the same plain acts, but covered two plausible interpretations of appellant’s intent at the time of the transaction. The indictment gave no less notice than one that appends a lesser included offense, where intent is at issue and a conviction may not be had for both crimes. Cf. United States v. Gaddis, supra, 424 U.S. at 547-550, 96 S.Ct. at 1025-1027.
Appellant does not explain, and we cannot imagine, how he could have been confused or otherwise prejudiced because the two counts were connected by the word “or.” Use of the connective could only have helped to emphasize to the jury that appellant could not be found guilty on both counts.
AFFIRMED.