On Petition to Rehear
Defendant has filed a petition to rehear. He insists that, since larceny and receiving stolen property are separate and distinct offenses, he cannot, at the same *333time, be guilty both as principal in the stealing of the goods and as receiver of the same from himself; and that no valid judgment can be entered on a verdict finding him guilty of both offenses; and he cites Bargesser v. State, 95 Fla. 404, 116 So. 12; and Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356, 80 A.L.R. 161.
Bargesser v. State applied the general rule pointed out in our former opinion. In that case, defendant was charged by information with a count for larceny of a car and a count for receiving the stolen car. The verdict of the jury found the defendant “guilty as charged in the information,” which the court said was in effect a conviction upon both counts; and it held that since the verdict was one which the law did not authorize, the judgment thereon must be reversed.
Under the rnle of practice in our state, however, a general verdict finding defendant guilty upon an indictment with a number of counts, some of which are legally invalid or unsupported by proof, will be referred to the count or counts which are good and judgment upon them will be affirmed. Tenn. Central Ry. Co. v. Umenstetter, 155 Tenn. 235, 237-238, 291 S.W. 452; Mendolia v. State, 192 Tenn. 656, 668, 241 S.W.2d 606.
As noted in our former opinion, however, the verdict in this case was not a general one but was in effect two verdicts, one for larceny of the car and the other for receiving the stolen car; and there being ample evidence to support the latter verdict, it was proper under our practice to disregard the former verdict as harmless error and affirm the judgment on the latter.
*334In Dunn v. United States, supra, the Court (op. by Mr: Justice Holmes, with Justice Butler dissenting) held that consistency in a verdict is not necessary, that each count in the indictment is regarded as if it were a separate indictment, and each treated as if the several offenses were separately charged. Upon such a view, we may properly set aside so much of the judgment as is based upon a verdict on an invalid count and affirm so much of the judgment as rests upon a valid count. Smith v. State, 212 Tenn. 510, 370 S.W.2d 543, 546, and cases there cited..
We find no merit in the petition to rehear, and it is denied. ,