¶11. The court properly overruled the objection taken at the trial to the introduction of any evidence under either count, because there were two counts charging to some extent a similar offence; and also the motion of the defendant requiring the prosecuting officer to elect upon which of the counts he would proceed.
¶22. Evidence that the tenement was kept by the defendant for illegal gaming, was competent, and sufficient to warrant a con viction, although the government did not show that the tenement was also used for the illegal sale or keeping of intoxicating liquors. Keeping and using the tenement for either of these purposes was a violation of the statute upon which this indictment was founded.
¶33. The evidence of sales of liquor in the tenement was competent in connection with the evidence that the defendants kept the tenement.
¶44. It is no ground of objection to the competency of evidence, that it was not also introduced before the grand jury, when the offence attempted to be proved by it is the same offence charged by the grand jury.
¶55. The evidence concerning the hanging of bells in the barroom and chambers was properly admitted—it being competent, though perhaps slight evidence. It was for the jury to judge from the evidence how far it connected the defendants with the transaction, and what inference should be drawn from it. It furnished no ground for exceptions to the verdict, that the district attorney presented and enforced in his argument to the juiy his theory of the purposes designed to be secured by the placing of the bells in the various rooms.
¶66. It is urged that no judgment can be properly entered upon *410the second count, inasmuch as the jury have found a verdict of not guilty upon the first count, which embraces the entire period of time in which the offence is charged in the second count, and so the finding of the jury is repugnant. The objection here taken is not that of a former conviction, or former acquittal under an indictment of the same purport as the first count. Had it been so, it might have constituted a more valid objection. But the case as now presented is the common case of several counts introduced into one indictment, intending to charge the party of one offence, although charging it in different forms. In such case the whole evidence goes to the jury, and, when thus given to the jury at the same time, is to be applied as may be proper to one or the ‘other of the counts ; and it is competent and proper for the jury, having applied it to one of the counts, and thus exhausted its force by a verdict of guilty upon such count, to return a verdict of not guilty upon the other. Such verdict implies no contradiction, but only negatives the commission of two offences.
¶7In the present case, the first count not only charged the offence as having been committed at an earlier date than the second, but also alleged that the tenement was kept and maintained as a house of ill fame, and resorted to for the purposes of prostitution, as well as for the purposes of illegal gaming and illegal keeping of intoxicating liquors, which latter were alone charged in the second count. It is true that proof of either purpose and act would have sustained the charge of keeping and maintaining a nuisance made punishable by St. 1855, c. 405, and authorized a conviction upon the first count; but the grand jury having in the second count charged the nuisance in a less aggravated form, and the evidence being more appropriate to that, the jury might properly so apply it, and return a verdict of guilty on such count, and at the same time return a verdict of not guilty on the first count.
¶87. The second count in the indictment charges the offence properly, without any further negation of an authority to keep and sell intoxicating liquors, and without any specification of the kind of illegal gaming for which the tenement was used, *411and although it does not charge that the tenement was kept as a house of ill fame, resorted to for prostitution and lewdness. Commonwealth v. Kimball, 7 Gray, 128.
¶9 Exceptions overruled.