WILLIAMS, J.
Upon an indictment charging them with murder in the first degree, for the killing of one L. B. Pritchard, defendants were tried in the circuit court of Mississippi County, found guilty of murder in the second degree (except as to defendant. Odie Reeves, which will be discussed at length in the opinion) and each sentenced to ten years’ imprisonment.
Defendants duly appealed. This is the second ap' peal in the cause. ' The opinion upon the first appeal will be found reported in 195 S. W. 1027, wherein a full statement of the facts are set forth.
The indictment was in three counts and was the same upon both trials. Since upon the first trial- a co-defendant, Devo Ross, was acquitted, we will refer to the indictment as though Ross were not named therein.
Each count of the indictment charges the defendant with murder in the first degree for the killing of said Pritchard. The first count charges that defendant Steve Reeves assisted in committing the murder by use of a “wooden stick four feet long, three inches wide and one inch thick, of the weight of about four pounds,” and that defendant Odie Reeves likewise assisted by the use of “an instrument about the length of sixteen inches and the width of two inches and the thickness of one inch and of the weight of two pounds, of some hard substance and material, the exact kind to this grand jury unknown.”
[345]*345The second count charges that defendant Steve Reeves committed the murder by use of the above mentioned four-pound wooden stick and that defendant Odie Reeves was present, inciting, aiding and commanding Steve Reeves to commit said murder.
The third count charges that defendant Odie Reeves committed the murder by use of said unknown two-pound instrument and that defendant Steve Reeves was present, inciting, aiding and commanding Odie Reeves to commit said murder.
Upon the first trial the present defendants were found guilty of murder in the second degree under the first' count, but the verdict was silent concerning the second and third counts. The judgment upon that verdict was reversed and the cause was remanded upon the first appeal. The verdict upon the second trial was for murder in the second degree (except as hereinafter explained), without referring to either count of the indictment.
Before the second trial was begun the defendants, by leave of court, filed a plea in bar setting up the claim of former jeopardy. It is unnecessary to set forth in full the allegations of the plea in bar. In substance it may be said to have presented the contention that since each of the three counts charged the same offense and since the verdict of guilty on the first count upon the first trial amounted to an acquittal on the second and third count, therefore, having once been acquitted of the offense, they could not again be tried therefor, but were entitled to be discharged.
The State filed a demurrer to the plea in bar, which was sustained.
Such further facts as shall be necessary to an understanding of the points now under review will be mentioned in the course of the opinion.
I. Appellants’ main contention for a reversal is that the court erred in sustaining the demurrer to their plea of former acquittal.
[346]*346Former Jeopardy. It will be seen by reference to tbe indictment that each of tbe three counts charge the commission of the same crime. The first count charges each as principal and the second and third count charges each respectively as principal and as accessory ^ ^ The real ■ necessity for formally charging the defendants as accessories before the fact does not appéar, since under the present law' in this State such accessory “may be charged, tried and convicted and punished in the same manner, as the principal in the first degree.” [Sec. 4898, R. S. 1909.]
But whatever may have been the purpose of the pleader it is immaterial here. We merely mention the foregoing rule to show that there can be no doubt but that the identical • crime was charged in each of the three counts.
The exact legal question which the present case presents is this: When a defendant is tried upon an indictment in three counts, each charging the same crime, and the jury returns a verdict of guilty under the first count but is silent as to the two .remaining counts, is there in law an implied acquittal upon the remaining counts and if so does such imnlied acquittal (after the judgment, upon appeal by defendant, has been reversed and the cause has been remanded), entitle the defendant to be discharged on the theory that he has been once acquitted of the crime for which he is again sought.’to be tried?
We have reached the conclusion that the above question must be answered in the negative.
Appellants contend that the silence of the verdict upon the first trial concerning the second and third counts (there having been an express verdict of guilty on the first count), amounted to an acquittal upon said counts, and that therefore this case should fall within and should be controlled by the rule announced in the case of State v. Headrick, 179 Mo. 300. That case in effect held that under an indictment in two counts (each count charging the same crime), the express ver[347]*347diet of not guilty under the second count was a bar to the enforcement of an express verdict of guilty under the first count, and that the defendant should be discharged.
Whether the Headrick case was correctly ruled we are not now called upon to decide. It will be sufficiently timely to re-examine that case when the precise question there ruled is again presented and directly involved in the determination of a case. The fact that there was an express verdict of acquittal in that case, while, in the present case there was not, sufficiently distinguishes the two cases to relieve the Headrick case from serving as a useful precedent in the instant case.
It occurs to us that the principal error in appellants’ contention in the case at bar is in assuming that the silence of the first verdict as to the second and third counts, amounted to an acquittal under those counts.
It is true, that appellant cites cases from this State using the general language that a verdict under one count amounts to an acquittal upon the remaining counts concerning which the verdict is silent. And such appears to he the general rule applicable in most states. But nowhere have we been able to find that the above general rule has ever been applied (certainly not expressly applied) to a situation where the separate counts charge the same crime.
The present point (as far as our research has extended) does not appear to have been frequently treated.
The only case, which we have been able to find, which discusses' the exact point now under review is the case of Brown v. United States, 2 Ind. Ter. 582. In that case the rule, which we think is the correct one and here applicable, was stated as follows:
“If an indictment contain more than one count and different offenses are set up in the different counts, then, on conviction on one, and silence by the jury as to the other, the defendant stands acquitted as to the counts not mentioned in the verdict, and as to [348]
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WILLIAMS, J.
Upon an indictment charging them with murder in the first degree, for the killing of one L. B. Pritchard, defendants were tried in the circuit court of Mississippi County, found guilty of murder in the second degree (except as to defendant. Odie Reeves, which will be discussed at length in the opinion) and each sentenced to ten years’ imprisonment.
Defendants duly appealed. This is the second ap' peal in the cause. ' The opinion upon the first appeal will be found reported in 195 S. W. 1027, wherein a full statement of the facts are set forth.
The indictment was in three counts and was the same upon both trials. Since upon the first trial- a co-defendant, Devo Ross, was acquitted, we will refer to the indictment as though Ross were not named therein.
Each count of the indictment charges the defendant with murder in the first degree for the killing of said Pritchard. The first count charges that defendant Steve Reeves assisted in committing the murder by use of a “wooden stick four feet long, three inches wide and one inch thick, of the weight of about four pounds,” and that defendant Odie Reeves likewise assisted by the use of “an instrument about the length of sixteen inches and the width of two inches and the thickness of one inch and of the weight of two pounds, of some hard substance and material, the exact kind to this grand jury unknown.”
[345]*345The second count charges that defendant Steve Reeves committed the murder by use of the above mentioned four-pound wooden stick and that defendant Odie Reeves was present, inciting, aiding and commanding Steve Reeves to commit said murder.
The third count charges that defendant Odie Reeves committed the murder by use of said unknown two-pound instrument and that defendant Steve Reeves was present, inciting, aiding and commanding Odie Reeves to commit said murder.
Upon the first trial the present defendants were found guilty of murder in the second degree under the first' count, but the verdict was silent concerning the second and third counts. The judgment upon that verdict was reversed and the cause was remanded upon the first appeal. The verdict upon the second trial was for murder in the second degree (except as hereinafter explained), without referring to either count of the indictment.
Before the second trial was begun the defendants, by leave of court, filed a plea in bar setting up the claim of former jeopardy. It is unnecessary to set forth in full the allegations of the plea in bar. In substance it may be said to have presented the contention that since each of the three counts charged the same offense and since the verdict of guilty on the first count upon the first trial amounted to an acquittal on the second and third count, therefore, having once been acquitted of the offense, they could not again be tried therefor, but were entitled to be discharged.
The State filed a demurrer to the plea in bar, which was sustained.
Such further facts as shall be necessary to an understanding of the points now under review will be mentioned in the course of the opinion.
I. Appellants’ main contention for a reversal is that the court erred in sustaining the demurrer to their plea of former acquittal.
[346]*346Former Jeopardy. It will be seen by reference to tbe indictment that each of tbe three counts charge the commission of the same crime. The first count charges each as principal and the second and third count charges each respectively as principal and as accessory ^ ^ The real ■ necessity for formally charging the defendants as accessories before the fact does not appéar, since under the present law' in this State such accessory “may be charged, tried and convicted and punished in the same manner, as the principal in the first degree.” [Sec. 4898, R. S. 1909.]
But whatever may have been the purpose of the pleader it is immaterial here. We merely mention the foregoing rule to show that there can be no doubt but that the identical • crime was charged in each of the three counts.
The exact legal question which the present case presents is this: When a defendant is tried upon an indictment in three counts, each charging the same crime, and the jury returns a verdict of guilty under the first count but is silent as to the two .remaining counts, is there in law an implied acquittal upon the remaining counts and if so does such imnlied acquittal (after the judgment, upon appeal by defendant, has been reversed and the cause has been remanded), entitle the defendant to be discharged on the theory that he has been once acquitted of the crime for which he is again sought.’to be tried?
We have reached the conclusion that the above question must be answered in the negative.
Appellants contend that the silence of the verdict upon the first trial concerning the second and third counts (there having been an express verdict of guilty on the first count), amounted to an acquittal upon said counts, and that therefore this case should fall within and should be controlled by the rule announced in the case of State v. Headrick, 179 Mo. 300. That case in effect held that under an indictment in two counts (each count charging the same crime), the express ver[347]*347diet of not guilty under the second count was a bar to the enforcement of an express verdict of guilty under the first count, and that the defendant should be discharged.
Whether the Headrick case was correctly ruled we are not now called upon to decide. It will be sufficiently timely to re-examine that case when the precise question there ruled is again presented and directly involved in the determination of a case. The fact that there was an express verdict of acquittal in that case, while, in the present case there was not, sufficiently distinguishes the two cases to relieve the Headrick case from serving as a useful precedent in the instant case.
It occurs to us that the principal error in appellants’ contention in the case at bar is in assuming that the silence of the first verdict as to the second and third counts, amounted to an acquittal under those counts.
It is true, that appellant cites cases from this State using the general language that a verdict under one count amounts to an acquittal upon the remaining counts concerning which the verdict is silent. And such appears to he the general rule applicable in most states. But nowhere have we been able to find that the above general rule has ever been applied (certainly not expressly applied) to a situation where the separate counts charge the same crime.
The present point (as far as our research has extended) does not appear to have been frequently treated.
The only case, which we have been able to find, which discusses' the exact point now under review is the case of Brown v. United States, 2 Ind. Ter. 582. In that case the rule, which we think is the correct one and here applicable, was stated as follows:
“If an indictment contain more than one count and different offenses are set up in the different counts, then, on conviction on one, and silence by the jury as to the other, the defendant stands acquitted as to the counts not mentioned in the verdict, and as to [348]*348those counts a pleá of former jeopardy will he sustained, even though on the motion of the defendant the verdict of guilty on the count upon which he was convicted be set aside, and a new trial granted. In such case he can only be again put upon his trail on the count of the indictment upon which he had been convicted. But, when the different counts are simply formal variations in stating the same offense, then the granting of a new trial opens the whole case, and the defendant may be put upon his trial, and convicted upon any of the counts.” [Id. l. c. 590-591.]
Any other view would, to our mind, lead to an absurdity. It would amount to saying that the mere, inference of acquittal arising from'the silence of the verdict as to certain counts was strong enough to overcome a verdict of guilty finding expressly to the contrary under a count charging the identical crime.
Under the facts stated in the plea in bar in the present case the silence of the first verdict as to counts two and three did not therefore warrant an inference of acquittal or amount to a verdict of acquittal thereunder. Since this is true, the plea in bar failed to state facts sufficient to show a former acquittal of the defendants, and the demurrer thereto was properly sustained.
Demurrer and Evidence, II. It is contended that the court erred in failing to sustain a demurrer to the evidence as to defendant Odie Reeves. In this behalf it is insisted that there is no evidence to show that Odie Reeves struck deceased. We are ;unable to agree with this contention. Witness Tom Bird testified that at the invitation of Odie Reeves, Steve, Odie and himself were in the building to overhear an expected conversation between Pritchard (deceased) and Ross. That, shortly afterwards, Ross and Pritchard had the conversation and immediately thereafter ' Odie and Steve rushed together out of and around the corner of the building. That instantly he heard a lick struck and immediately thereafter “they came around in front of the door fighting and somebody [349]*349struck Pritchard and he fell.” This witness further testified that, while he was not' sure, he thought he saw Odie pick up, in the corner of the building as he rushed out of the door, a round ash stick about the size of a small hoe handle and that whoever struck Pritchard the second time “struck him with something like a hoe handle.”
Witness Glen Pritchard testified that he reached the door of the building and looked in just before Steve Reeves and another man (whom the witness was unable then to identify in the dark) rushed out of the door towards the deceased; that he saw Steve strike his brother (the deceased) but his brother knocked the lick off; the weapon used looked like a piece of “two-by-four.” The witness then proceeds: “the other party rushed out close on behind Steve and my brother was gettingup and he struck him in the head. This party had something small in his hand that looked like it was a foot and a half or two feet long; that looks like the same instrument; . . . after the last blow was struck they run south towards their home.”
It was true there was strong evidence in sharp conflict with the .above, but the foregoing was sufficient to submit to the jury the question of Odie’s participation in the killing.
0í0T?‘fXafiltation III. It is further contended that the court erred in permitting the State to cross-examine the defendants on matters upon which they were not examined in chief. this it is sufficient to s^y that the same is nowhere mentioned in or included within the allegations of the motion for a new trial, and it is therefore not properly preserved for appellate review. Furthermore we might say, in passing, that our examination of the record does not disclose any error of this kind which would, even, if properly preserved, warrant a reversal of the ease.
[350]*350statemeiitniCated IV. Defendants offered to prove by witness Henderson that about thirty days prior to the killing, L. B. Pritchard (the deceased) told Mike Riley that he had been having sexual intercourse with defendants’ sister; that in reply Mr. Riley said: “You had better stop telling that; if old man Dave Reeves hears it, he’ll kill you;” and that thereupon Pritchard replied: “I don’t give a dam about the Reeves knowing it; I’m not afraid of them; they won’t hurt me.” The court excluded the offer.
We are unable to discover wherein the above ruling was error. It does not appear that the statement had ever been communicated to defendants and that therefore it might have been admissible as explaining the purpose of defendants’ presence at the scene of the killing. Neither was the statement a threat, and therefore admissible to show who was the probable aggressor.
rovocation. V. Appellants complain that the instruction on manslaughter in the third degree was erroneous in that it precluded the jury from finding that the “heat of passion” necessary to reduce the crime from murder to manslaughter might have arisen from the worcjg or threatening attitude of the deceased. It is the well-established general rule in this State that mere words or threatening actions do not supply sufficient provocation for the heat of passion which reduces murder to manslaughter. [State v. Sebastian, 215 Mo. 79; State, v. Myers, 221 Mo. l. c. 620; State v. Barrett, 240 Mo. 160, l. c. 171; State v. Finley, 245 Mo. 465, l. c. 476.] There are no facts in the present record which would remove this case from the operation of the above stated general rule.
VI. The instruction on. manslaughter in the fourth degree was ás follows:
[351]*351ofeBothS Degrees. [350]*350“The court instructs the jury that if you believe and find from the evidence that the defendants at the County of Mississippi and State of Missouri, on the ,15th day of October, 1915, or at any time within three [351]*351years next before the filing of the indictment ^ere^nJ which was filed on the 20th day of October, 1915, killed L. B. Pritchard by beating him on the head and body with a stick or stick of wood or other instruments, and that such instrument was a dangerous and deadly weapon, while defendants were in a violent passion, suddenly arotised by dedeceased having struck defendant Steve Reeves with his hand or-fist, or if you find and believe from all the facts and circumstances in evidence in this case that either one of the defendants, on or about the 15th of October, 1915, in Mississippi County, Missouri,' in the manner and by the means defined in this instruction, did kill L. B. Pritchard, and that the other defendant was willfully present at such killing, advising or encouraging the same, you cannot find defendants guilty of" murder in either degree, for in that case the law presumes that such beating and killing were not done of defendants’ malice, but by reason of such passion. On the other hand, although you may believe from the evidence that defendants beat and killed L. B. Pritchard while defendants were in violent passion, suddenly aroused by a blow from the deceased, yet, if you shall further find from the evidences that such beating and killing were not done in self-defense, as hereinafter explained, you will find the defendants guilty of manslaughter in the fourth degree and assess their punishment at imprisonment in the penitentiary for a term of two years, or by imprisonment in the county jail for not less that six 'months nor more than twelve months, or by a fine not less than $500, or by both a fine not less than $100 and imprisonment in the county jail for not less than three months nor more than twelve months.”
Appellants contend that the above instruction permits the jury to find the defendants guilty of manslaughter in the fourth degree upon the same facts which would permit them under another instruction to find them guilty of manslaughter in the third degree.
[352]*352It does appear that the instruction (when carefully read) is sufficiently broad to permit the inclusion within its terms of the elements of manslaughter in the third degree as well as the elements of manslaughter in the fourth degree, but since by the terms of the instruction, any conviction thereunder was confined to the lesser offense, to-wit, manslaughter in the fourth degree, it would appear that instead of the instruction being prejudicial it was beneficial to defendants.
Had the instruction permitted the jury to find defendants guilty of manslaughter in the third degree, then quite a different situation would be presented because in that event defendants might have undergone the danger of being convicted of the greater offense upon a finding of the facts which would only justify a conviction of the lesser offense.
• For the foregoing reasons we hold that instruction was erroneous. We are of the opinion that the error was not prejudicial.
VII. The jury returned the following verdict:
er 10 ' “We the jury, in the case of State of Missouri v. Odie Reeves and Steve Reeves find the defendant, Steve Reeves, guilty of murder in the second degree and fix his punishment. at ten years in the penitentiary, and we find the defendant, Odie Reeves, guilty of being an accessory to the crime and fix his punishment at three years in penitentiary.”
Thereafter (and on the theory that the jury had found Odie Reeves guilty of murder in the second degree, and had therefore erroneously fixed his punishment at three years), the court (attempting to exercise the authority granted under Section 5255, Revised Statutes 1909) made an order fixing the punishment of Odié Reeves at ten years’ imprisonment in the penitentiary, the same being the minimum punishment for murder in the second degree.
Appellants contend:
[353]*353(1) The verdict as to defendant Steve Eeeves is insufficient in that it does not specify the count under which he is found guilty.
(2) It is insufficient as to defendant Odie Eeeves, because it does not find him guilty of rñurder in the' second degree, and is too indefinite and uncertain to support any judgment of conviction.
Concerning" point one it is sufficient to say that since each count contained within its terms a charge of the identical crime of murder in the second degree, it was wholly unnecessary that the jury specify the count under which they found him guilty. [State v. Noland, 111 Mo. 473, l. c. 501; State v. Van Wye, 136 Mo. 227, l. c. 243; State v. De Witt, 186 Mo. 61, l. c. 67; State v. Martin, 230 Mo. l. c. 20.]
We are of the opinion that point two is well taken and that therefore the verdict as to defendant Odie Eeeves was insufficient.
One of the prerequisites of a valid verdict is that it must be definite and certain. [State v. De Witt, 186 Mo. 61, l. c. 67; State v. Rowe, 142 Mo. 439. l. c. 442; State v. Pierce, 136 Mo. 34, l. c. 40.] It must also be responsive to the charge contained in the information. [State v. Miller, 255 Mo. 223, l. c. 231.]
In the case of State v. Pierce, supra, the following was quoted with approval from 3 Graham & Waterman on New Trials, to-wit: “The verdict must be certain, positive and free from all ambiguity. It must convey on its face a definite and precise meaning and must show just what the jury intended. An obscurity which renders it doubtful will be fatal to it.” [Id. l. c. 40.] Applying the above rule it becomes at once apparent that the present verdict as to Odie Eeeves is insufficient. It finds him guilty “of being an accessory to the crime and fixes his punishment at three years in the penitentiary.” The phrase “accessory to the crime” is indefinite both as to the kind of an accessory intended as well as to the exact grade of the crime of which he was found guilty. It is only an “accessory before the fact” that is to be held guilty [354]*354in the same degree as the principal. [Sec. 4898, R. S. 1909.] Neither the indictment nor the instructions contain the word “accessory.” What the jury intended, by the use of that word in the manner employed, we have no way of knowing.
It cannot be said that the verdict rendered clearly expresses the intention to find him guilty of murder in the second degree or of being an accessory before the fact to murder in the second degree, when the verdict in no manner undertakes to state the kind of an accessory intended, nor the facts necessary to constitute-him an accessory before the fact to the crime of murder in the second degree.
Other errors assigned are such as have either been determined upon the former appeal or have not sufficient merit to warrant discussion.
It follows from what has been said above that the judgment as to Steve Reeves should be affirmed, and that the judgment as to Odie Reeves should be reversed and the cause remanded. It is so ordered.
All concur.