delivered the opinion of the court.

The defendant was indicted for three distinct felonies, in three separate counts, in one indictment, under § 1124 of the code of 1892, as amended by the act of 1896, making each of the offenses a felony. The court overruled the motion to compel the district attorney to elect on which count he would try the defendant, and the trial proceeded throughout on all three of the counts. The case was not dismissed as to the second and third counts. The pleadings stood unchanged throughout. It is true that the court, in its first instruction for the state, told the jury that the defendant was being tried for keeping and exhibiting a gambling table, but this statement in the instruction is contradictory of the pleadings and evidence. In the course *185of the trial there was evidence, for instance, that the defendant kept and exhibited a gambling table, that he was concerned and interested in the table, and that he managed the table. It would have been very easy to have limited the inquiry before the jury to the first count, by dismissing as to the other two, or electing to try him on the first only; but the motion to compel election was overruled, and the record fails to disclose any dismissal as to the other two counts. Indeed, it shows affirmatively that defendant was tried on all three of the counts, and a general verdict of guilty rendered. Now, the express language of the statute requires that under the second count in the indictment the state must charge and prove that the defendant was interested in the profit or loss of the table. Whatever may be the true view as to whether it is necessary to show this under the first count, it is plain, from the express language of the statute, that it must be shown in order to convict the defendant under the second count. The testimony was in conflict as to whether the defendant was interested in the loss or profit of the table, and yet, under this state of the case, the statute requiring the second count to charge that the defendant was so interested in the profit or loss of the table, and the said second count being properly drawn, and expressly charging, according to the statute, that the defendant was so interested, and the testimony for the state and the defendant being in direct conflict as to whether he was so interested, the court refused nine charges ’ asked for the defendant, the direct purpose of which was to declare to the jury that the defendant could not be convicted unless the evidence showed him to have been so interested in the loss or profit of the table. It is manifest that it was error to réfuse these instructions, for the reason that it was the right of the defendant to have them given, as appropriate to the second count. Non constat but that the jury found him guilty under the second count alone, even though they might have believed that he was not interested in the loss or profit of the table under the second count. We do not decide whether the *186indictment should charge, under the first count, that the defendant-was interested in the loss or profit of the table. We merely decide that since the statute expressly makes it necessary to his conviction under the second count that he should be so interested, and since the testimony was in conflict on that point, the defendant was clearly entitled to instructions telling- the jury that under the second count he could not be convicted unless they believed he was so interested. It was also error to charge the jiiry, for the state, that defendant could be convicted although he was not so interested, Avithout limiting the right so to convict to the first count, even if the true vieAv be — as to Avhich we do not decide — that it is not necessary under the first count to charge and prove that he was so interested.

' Reversed and remanded.