delivered the opinion of the Court.
The plaintiff in error was convicted of selling intoxicating beverages. The indictment was returned on May 5, 1964. The misdemеanor upon which this indictment was based was committed on December 19, 1963, and the trial was had on Septembеr 9,1964. The plaintiff in error plead not guilty to the charge. He was fined $500.00 and given six months in jail, provided that the jail sentеnce would be suspended on good behavior.
Plaintiff in error filed his motion to dismiss and quash ■the indictment on the ground thаt at the last term he had been adjudged guilty of possessing intoxicating liquors, and that the indictment here was based uрon the identical facts and the same transaction as was the indictment there.
The evidence herе is the same as the evidence in the previous case, as it pertains only'to the sale of a “fifth” of vоdka. The date is the same; the two agents of the State Alcoholic Beverage Commission collabоrated in the purchase from the plaintiff in error, which is the same transaction here as it was in a previous case.
On December 19,1963, early in the evening one of these agents drove to a building west of the City of Jaсkson with the other agent in the trunk of his car, purchased a
The sale of intoxicating liquors is made unlawful by T.C.A. sec. 39-2502, which is based upon Chapter 1, sec. 1, of the Public Acts of 1909. This is the statute upon which the present conviction was based.
The receiving, possession and transportation of intoxicating liquors are made unlawful by T.C.A. secs. 39-2506, 39-2507 and 39-2508, respectively, which are based on Chapter 12, Sections, 1, 2 and 3 of the Act's of 1917. T.C.A. sec. 39-2507 is the Section covering the unlawful possession of intoxicating liquors, which was the statute upon which the first conviction was had on the factual situation here.
Thе Assistant Attorney G-eneral as well as the counsel for the plaintiff in error have cited a number of casеs governing the rule of when offenses may be split into independent actions, and when the conviction or acquittal in one may be considered an acquittal in the other. The best opinion we have read on thе subject is that of Dowdy v. State,
*16 “The test generally applied is that when the facts necessary to convict on the second prosecution would necessarily have convicted on the first, a final judgment on the first prosecution will be a bar to the secоnd ; but if the facts which will convict on the second prosecution would not necessarily have convictеd on the first, then the first will not be a bar to the second, although the offenses charged may have been cоmmitted at the same time and by the same act.”
Of course, criminal acts or delinquencies of the plaintiff in еrror cannot logically be carved into two distinct offenses carrying separate, distinct and successive punishments. The criminal conduct of the plaintiff in error of possessing liquor contrary to the statute was an integral part of the incident of selling this same liquor. When the State relied upon the same criminal act in both cases two convictions could not legally be obtained. Both offenses could be charged in the same indictment in different counts, and a conviction had upon either one or-the other, but the State cаn prosecute but once; it would be otherwise if the two offenses were based upon •separatе criminal acts. Whether or not this was true would necessarily depend upon the evidence offered in suрport of the motion to dismiss and when ..the evidence did show that they grew out of the same acts the trial judge should have sustained the motion.
We thinTc that the proposition here is absolutely controlled by-our casе of State v. Petrone (1936),
For the reasons herein set forth, we think it was error not to sustain the motion in behalf of the plaintiff in error to dismiss, and the case is consequently reversed and dismissed.