State v. Ammons , 220 Mo. 6 ( 1909 )

GANTT, P. J.

This prosecution was begun on the 5th day of June, 1906, by the circuit attorney of the city of St. Louis, by an information duly verified and filed in the office of the clerk of the circuit court for criminal causes. The defendants were arrested and duly arraigned.

On November 1, 1906, the defendants were put on trial before ¿ jury and were each convicted of an assault with intent to kill as charged in the information and the jury further found that each of the defendants was under the age of eighteen years. In due time they filed their motions for a new trial, which were overruled on November 26, 1906. At the same term, they filed their motions in arrest, which were continued to the December term, 1906, and again continued to the February term, 1907, at which last-mentioned term they were overruled. Thereupon each of the defendants was sentenced to the Missouri Training School for Boys for a period of two years and from that sentence they appealed to this court.

At the February term the defendants were allowed until February 24, 1907, to file their bill of exceptions and the same was filed February 21, 1907. No order extending the time for filing the bill of exceptions to the December term, 1906, was made at the November term, at which the motion for new trial was overruled.

I. It is apparent that the filing of the bill of exceptions at the February term, 1907, did not preserve the exceptions taken at the November term, 1906, and there is nothing before this court for review except such matters as are raised by the motion in arrest filed at the December term, 1906, and continued to the February term, 1907, and the record proper. This -is the settled ruling of this court. [State v. Larew, 191 Mo. 192 ; State v. Goehler, 193 Mo. 177; State v. Harroun, 199 Mo. 258; State v. Jackson, 209 Mo. 397.]

II. The motion in arrest assails the information and verdict. The information is in the often approved form and amply sufficient to charge an assault with intent to kill with malice aforethought.

The jury found the defendants guilty of an assault with intent to kill, but did not assess their punishment. By virtue of section 2649, Revised Statutes 1899, in these circumstances, the court was authorized to assess and declare punishment as it did. [State v. Foster, 115 Mo. l. c. 450, 451.] By virtue of section 7759, Revised Statutes 1899, the defendants having been found by both the court and jury to be under the age of eighteen years, the court was authorized to sentence them to the State Reform School for two years, which it did.

We discover no error in the record proper and the judgment of the circuit court is in all things affirmed.

Burgess and Fox, JJ., concur.