
    THE STATE v. JAMES O’HEARN, Appellant.
    Division Two,
    November 14, 1911.
    VERDICT: No Designation of Count: Indicted for Murder: Convicted of Manslaughter. Where defendant was charged with murder in the second degree in two counts; in the first, with having murdered deceased with a stick of wood thirty-one inches long, and, in the second, with having murdered deceased with a stick of wood, the weight and dimensions of which are to the grand jurors unknown, a verdict, finding defendant guilty of manslaughter in the fourth degree, is not defective for that it does not designate the count of the indictment upon which it is founded. The charge of murder in the second degree embraces the crime of manslaughter; and where the verdict specifies the degree of defendant’s guilt, namely, manslaughter in the fourth degree, it is sufficient.
    Appeal from. St. Louis City Circuit Court. — Hon. Geo. C. Hitchcock, Judge.
    Affirmed.
    
      Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.
    No bill of exceptions was filed in this case. Tbe record proper is free from error, and the judgment should be affirmed. State v. Morgan, 191 Mo. 191. (1) The indictment is in proper form. Sec. 4449, R. S. 1909; State v. Woodward, 191 Mo. 617; State v. Lowe, 93 Mo. 547; State v. Minor, 193 Mo. 597; State v. Myers, 198 Mo. 225. The defendant was duly arraigned and entered his plea of not guilty. The jury was properly impaneled and sworn. The verdict of the jury is in proper form, certain and responsive to the issues. (2) Though there are two counts in the indictment charging defendant with the crime of murder in the second degree, and the verdict was guilty of manslaughter in the fourth degree, yet it will be clear to. the court on reading it that only reference is made in both counts to a single transaction — the different counts being based on description of the weapon used, a stick of wood. Therefore, the verdict is sufficient. State v. Martin, 230 Mo. 1; State v. Wilson, 126 Mo. App. 302; State v. Simpson, 126 Mo. App. 169. (3) The form of the verdict is correct and proper, but if it is not, it could furnish no ground for reversal, as such objection must be made by bill of exceptions. State v. King, 194 Mo. 474.
   BROWN, J.

No bill of exceptions was filed by appellant; neither has he favored us with any brief; but we have carefully examined the record proper, from which it appears that defendant was charged with murder in the second degree, in an indictment containing .two counts.

In the first count it is charged that defendant murdered one Ralph Coffins with a stick of wood thirty-one inches long; and in the second count it is charged that the murder was committed with a stick of wood, the weight and dimensions of which were unknown to the grand jurors.

The trial jury found the defendant guilty of man- . slaughter in the fourth degree, and fixed his punishment at a fine of five hundred dollars. This verdict does not designate the count of the indictment upon which it is founded, but it is not for that reason defective. [State v. Testerman, 68 Mo. 408.]

The charge of murder in the second degree embraces, the crime of manslaughter, of which defendant was convicted; and as the verdict specifies the degree of his guilt, it is sufficient. [State v. McCue, 39 Mo. 112; State v. Colvin, 226 Mo. 476.]

Finding no error in the record, the .judgment of the trial court .is affirmed.

Kennish, P. J., and Ferriss, J., concur.  