
    The State v. Lucas, Appellant.
    Division Two,
    November 21, 1898.
    1. Indictment: spelling of word. The fact that the word “gilts,” in an indictment for hog-stealing, is spelled “guilts,” does not vitiate the indictment.
    2. ———: quashing. The discretion of a trial court in ruling on a motion to quash an indictment can not be reviewed.
    3. New Trial: affidavit: by whom made. A motion for a new trial must be supported by an affidavit of defendant, unless some excuse is shown for the omission.
    4. -: newly discovered evidence. Newly discovered evidence whieh is merely for impeachment is not ground for a new trial.
    
      Appeal from Pulaslci Circuit Court. — Hon. L. B. Woodside, . Judge.
    Affirmed.
    Joe McGregor and Manes & Davis for appellant.
    Edward O. Crow, Attorney-GeneraL and Sam B. Jeffries, Assistant Attorney-General, for the State.
    (1) We are unable to appreciate the force of defendant’s motion to quash the indictment. It sets out a description of the property, and alleges it to have been stolen. It charges. the act to have been committed by the defendant feloniously,, and alleges ownership and value, as required. It is an exact -copy, so far as may be, of tbe formula approved iu Judge Kelley’s work bn Criminal Law, and has been followed by both tbe bar and courts of this State for many years. Kelley’s Grim. Law, sec. 667. (2) Courts are very reluctant in granting new trials on tbe ground of newly discovered evidence. State v. Sansone, 116 Mo. 1. Tbe general rule is that in order ~to warrant tbe granting of a new trial on tbe grounds of newly discovered evidence, tbe after-discovered evidence must be such as shows reasonable diligence on tbe part of tbe party ■offering it, and that it could not have been secured on tbe former trial without more than ordinary or due diligence upon the part of tbe defendant. It must be material and must go to tbe merits of tbe case, and not be merely cumulative, corroborative, collateral or impeaching; it must be such as to be decisive at another trial of an opposite result of tbe merits. Lib•erty'v. Burns, 114 Mo. 426; State v. Potter, 108 Mo. 424. Newly discovered evidence, material only for tbe purpose of •contradicting a witness, is not sufficient. State v. Welser, 117 Mo. 570.
   SHERWOOD, J.

— Tbe jury impaneled to try defendant for grand larceny, said larceny consisting in stealing some hogs, as hereinafter described, found him guilty as ■charged, and assessed bis punishment at two years in tbe penitentiary.

Tbe indictment is as follows: “Tbe grand jurors for tbe :State of Missouri, summoned from tbe body of Pulaski county, impaneled, charged and sworn, upon their oaths, present that Ed. Lucas, late of tbe county aforesaid, on tbe 12th day of November, 1895, at tbe county of Pulaski, State aforesaid, eight bead of bogs, one sow with both ears off, of tbe value of ten dollars; three guilts marked with a swallow fork and upper bit in tbe right ear, of tbe value of five dollars each, and four sboats marked with a swallow fork and upper bit in tbe right ear, of tbe value of two dollars and fifty cents each, and all of the aggregate value of thirty-five dollars, of the personal property of one James Waymire, then and there being, feloniously did steal, take and carry away, against the peace and dignity of the State.”

1. The trial court very properly denied the motion to-quash the indictment. It is in usual and approved form. The fact that the word “gilts'" is spelled with a u does not vitiate the indictment. Mere bad spelling does not have that effect, where the meaning is plain, and the word used is idem sonans with the word properly spelled. [1 Bishop New Or. Proc., secs. 354, 357, 688.]

2. Trial courts have a discretion as to quashing indictments which will not be revised by a higher court. • [1 Chit. Cr. Law, 300; 1 Bishop, New Cr. Proc., sec. 761; State v. Rector, 11 Mo. 28.] So that, in any view, the mere failure to quash is not ground of appeal in this court.

3. The evidence in this ease is unquestionably sufficient to warrant the finding of the jury, and the instructions on the part of the State and on behalf of defendant set forth the law of the case very plainly before the triers of the facts.

4. The motion for a new trial is unsupported by the affidavit of defendant; this is a fatal defect unless some valid excuse appears for the unwarranted omission. [State v. McLaughlin, 27 Mo. 111; State v. Campbell, 115 Mo. 391; State v. Fischer, 124 Mo. 460.]

Besides, the only tendency of the supposed newly discovered evidence was to contradict a witness who had testified for the State. This of itself, makes the application for a new trial on the ground of newly discovered evidence bad. [State v. Welsor, 117 Mo. loc. cit. 583, and cases cited.]

5. Relative to the alleged separation of the jury, the-evidence, pro and con was submitted to the court, and we perceive no reason for disturbing its ruling in this regard.

These views .result in affirming the judgment.

All concur.  