Simmons v. State

The Court of Appeals asks instruction upon the following question: “Where an accusation contains two counts, the first charging a sale of whisky, and the second charging possession of whisky (both charges growing out of the same transaction), and upon the trial the evidence authorizes a conviction under the second count only, and the verdict is a general verdict of guilty, and the defendant moves for a new trial, is it error to over*317rule the motion, where the sentence imposed does not exceed that which the court could have legally imposed if the accused had been convicted under the second…