The appellant was convicted of arson by the jury, and his punishment assessed at seven years’ confinement in the penitentiary.
The exceptions taken to the indictment were properly overruled. That part of the indictment which charges that a little child was in the house which was set on fire is not fatal to the indictment on the ground of duplicity. The counsel for the defendant moved the court to quash the indictment because it charges the defendant with burning the house of Charlotte Ware and also with burning his own house. This is not a proper construction to be placed on the language used in the indictment. It certainly charges the defendant with the willful burning of the dwelling-house of Charlotte Ware, and of no one else.
Doubtless it was the object of the pleader, in setting out in the indictment that bodily injury (less than death) was caused to the little child by reason of setting fire to said dwelling-house, to leave it discretionary with the jury, under a proper charge, to increase the punishment—not exceeding double that which is prescribed for the offense, under the statute, in cases where no such injury is suffered—if they found the defendant guilty. By a reference to Article 2337, Criminal Code (Pasc. Dig.), this was just what the pleader was authorized to do. The court below seems not to have noticed the law upon this branch of the subject; and *537•as no harm did result, or could have possibly resulted, to the prisoner—it being an error, if an error at all, entirely to the advantage of the defendant—he can claim nothing from it.
To render an indictment liable to the objection of duplicity, it has generally been held that the duplicity must be such •as to produce confusion and uncertainty as to what offense was really intended to be charged ; and so, also, where two distinct offenses are embraced in one count. If, however, the indictment charges the defendant with an offense which, in its nature and in the form of the allegation, includes several smaller ones—as, if it charges a murder which Includes manslaughter and every other degree of culpable homicide—it is not for this reason multifarious. An indictment for an assault with intent to murder in the same •count may charge also an aggravated assault, and still it would be a good indictment for the first offense.
The point which the counsel for the defendant mostly relies on, it would seem from his brief, for a reversal of the judgment is that the court received the verdict from the hands of the jury in the absence of the defendant’s counsel. This point is not presented in a bill of exceptions. The ■counsel for the defendant files an affidavit, which is copied into the record. We will admit that this point is properly before the court, and what figure does it cut in the case? The cause had been submitted to the jury. The court took a recess for dinner, leaving the jury in consultation over the case. After the recess the jury came in with their verdict, and were ready to deliver it. The defendant was present before the court, but his counsel had not returned from dinner. Under this state of facts the court received the verdict of the jury. We cannot perceive any harm that was done to the defendant. This is not unusual, and by it the defendant was deprived of no legal right. If a verdict cannot be received during the absence of defendants’ *538counsel, it would often happen that the business of the-country and the courts would be uselessly delayed, and the ends of justice might be defeated entirely. We know of no provision of the statute which requires the counsel for the prisoner to be present in court when the jury return their verdict.
In cases of felony the defendant must be present when the verdict is read, unless he escapes after the commencement of the trial of the cause ; but in cases of misdemeanor it may be received and read in his absence. Art. 3090, Code of Cr. Pro.
The testimony shows (if the witnesses are to be believed) that the defendant had become offended towards the owner of the house burnt; that he had assisted in building the-house for her before this ill-feeling originated; that he had told a witness the day before the fire the building would soon be in ashes, and had given his reasons for it. Soon after the fire had been extinguished he admitted to another witness his guilty agency. If the judgment rested on the testimony of the witness Harrison Evans alone, we would reverse it; but it does not, as will be seen from an examination of the record. The charge of the court was certainly as favorable to the defendant as he had any right to expect. The jury before whom the case was tried, after hearing all the evidence, having a full opportunity of seeing the witnesses and their manner of testifying, said, by their verdict, that the defendant was guilty as charged in the indictment. The district court refused to grant him a new trial. After a careful examination of the record we find no error committed by the lower court on the trial, and the evidence was sufficient to support the judgment.
The judgment of the district court is, therefore, affirmed.
Affirmed.