This is а case of original jurisdiction. The petitioner, W. S. Allison, with Joseph Eldridge Tomerlin, alias Charlie Jones, was informed against in the Circuit Court of Marion County, Florida, in two separаte counts. The first count charged that the defendants on March 17, 1941, with force and arms at and in Marion County, Florida, did unlawfully break and enter a certain building then and there the property of the Texas Company, Incorporated, with the intent to commit a felony, to-wit, to take, steal and carry away and convert to their own use certain personal property of another of the value of more than fifty dollars.
The second count of the information charged that the defendants on March 17, 1941, did unlawfully enter without breaking a certаin building then and there the property of the Texas Company, Incorporated, with the intent to commit a felony, to-wit, to take, steal, carry away and convert to their own use certain personal property of another of the value of more than fifty dollars. The petitioner and Joseph Eldridge Tomerlin, alias Charlie Jones, were placed upon trial before a jury, when the following verdict was returned. “We, the jury, find the defendants Joseph Eldridge Tomerlin, alias Charlie Jones, and W. S. Allison, guilty as сharged, so say we all. Earnest Molnar, Foreman.” The trial court adjudged W. S. Allison guilty, and stated “that you, W. S. Allison, for the crime of which you have been and stand convicted shall be imprisoned at hard labor in the State Prison of the State of Florida for a period of fifteen years.”
*702 The first count of the information is drafted under the provisions of Sеction 810.02, Fla. Stats. 1941 (FSA) and the penalty for its violation is imprisonment in the State Prison for a period of not exceeding fifteen years. The second count of the information is drafted under the provisions of Section 810.03, Fla. Stats. 1941 (FSA), and the penalty for its violation is punishment by imprisonment in the State Prison for a period not exceeding five yeаrs, or by a fine not exceeding one thousand dollars. Section 919.15, Fla. Stats. 1941 (FSA) provides, “If different offenses are charged in the indictment or information the jurors shall, if they cоnvict the defendant, make it appear by their verdict on which count, if the indictment or information is divided into counts, or of which offense they find him guilty.” The petitioner, W. S. Allison, alleges in his petition for a writ of habeas corpus that he has served under the judgment imposed in the State Prison more than five years of his sentence of fifteen years аnd that further imprisonment thereunder is invalid, illegal and contrary to both the State and Federal Constitutions; and that the two counts of the information and the verdict are vague, indefinite, insufficient, repugnant and inconsistent.
Thus the record reflects that the petitioner Allison, by the general verdict of the jury, was convicted for the violation simultaneously of two separate statutory crimes: (1) the crime of breaking and entering; and (2) entering without breaking. Each count charges the entry of that certain building of the Texаs Company on March 17, 1941, with the intent to commit a felony, to-wit, “to take, steal, carry away and convert to their own use certain personal property of another of the value of more than fifty dollars.” It simply was impossible for the petitioner to have entered the building of the Texas Company without breaking and at the samе time to have broken and entered the same building. The petitioner either (1) broke and entered the building or (2) entered the building without breaking. He could not do both at the samе time. The verdict and judgment rests on these two inconsistent counts of the information.
The case of Harris v. State,
The case of Bargesser v. State,
The case of Gordon and Stoneburner v. State,
The rule stated in Wharton’s Criminal Prоcedure, Volume III 2103-4, par. 1671, on inconsistent or repugnant counts *704 and a general verdict, harmonizes,with the holdings of this Court. It states the rule viz:
“1671. General Verdict When One Count is Bad, оr When Counts are Repugnant. — When there is a good count and a bad count, and a general verdict of guilty, it has been held that a valid judgment can be entered on the verdict, which will be presumed in error to have been entered on the good count. In some jurisdictions, however, a judgment entered on such a verdict will be reversed, as logically erroneous. And there must in any view be a reversal when evidence is admitted which is admissible only under the bad count. But when the counts are repugnant, a general vеrdict can not be sustained.”
See Volume 23 C. J. S. 1096-8, par. 1404; Lochner v. State,
Honorable Reeves Bowen, Assistant Attorney General, points out that the several Florida cases relied upon by the petitioner are cases reviewed here on appeal; that the petitioner is now bound by the construction placed on the two inconsistent counts and general vеrdict of the lower court and it is now too late for a collateral attack by habeas corpus on the judgment entered against him. We do not overlook our former adjudications to the effect that habeas corpus cannot- be used to take the place or to serve the purpose of an appeal to determine whether or not a judgment is erroneous when the court has jurisdiction of the person and the conviction is for an offense under the law and within the jurisdiсtion of the court to try, as was held in State ex rel. McAuley v. York,
*705
Counsel for petitioner argues “that where there are two counts in an information for similar crimes and a general verdict of guilty as charged is made by the jury that the sentence under such conditions cannot be greater than the sentence of the smaller crime.” And cites in support thereof Lucas v. State,
It is admitted in this record that the petitioner has served in excess of five years.
It is our view that under the facts here presented that the petitioner is being illegally held and restrained of his liberty and that he should, therefore, be discharged from custody.
It is so ordered.