concurred in part, as follows.:
- We concur in the judgment of affirmance,'and upon this short ground: The indictment contained four counts. -The defendant pleaded not guilty to the whole indictment,, and thereby joined issue ori each and all of the coupts; and the jury might find the defendant guilty upon albor any of them.' The jury .did return a verdict of guilty upon' each of-the first three couhts, and disagreed as to the fourth, count. The jury thus answered the whole of the issue presented by the plea to-each óf the first three counts, and failed to answer the issue presented, by the plea to the fqurth count. Their failure to return a verdict on the fourth count did not affect the-validity *271•of the verdict returned on the other three counts, or the liability of the defendant to be sentenced on that verdict. The defendant was sentenced upon those counts only upon which he had been convicted- by the jury. Theré is no error, therefore, in the judgment rendered upon the. verdict.
But in so much of the opinion of the court, as suggests that the plaintiff in error may be hereafter tried, convicted and sentenced anew upon the fourth count, we are unable to concur. No attempt has been made to try him anew, and the question whether he may be so tried is not -presented by this record. Upon principle, on one indictment and against one defendant there can be but one judgment and sentence, and that at one time, and for the offence or offences of which he has been convicted; ancha sentence, upon the counts on which he has been convicted by the jury, definitely and conclusively disposes-of the whole indictment, operates as an acquittal upon, or á discontinuancé. of, any count on which the jury have failed to agree, and makes any further proceedings against him on that count impossible. No case has been found, in which, after a conviction and sentence, remaining unréversed, on some of the counts in an indictment, a second sentence, upon a subsequent trial and conviction on another count in .the same indictment, has been affirmed by a court of error..
In Ballew v. United States, 160 U. S. 187, 203, and in Putnam v. United States, 162 U. S. 687, 715, in each of which a. judgment upon conviction on an indictment containing two counts was affirmed as to one count, and reversed as to the other count, the order of reversal did not direct a new trial off the .latter count, but was guardedly framed in general terms “ for such proceedings .with reference to that count as may be in confortnity to law; ” and under such an order it would be open to the defendant, if set at the bar to be tried again on that count, to plead the previous verdict and sentence in bar of the prosecution.