
    The State v. Baldridge, Appellant.
    DIVISION TWO.
    Criminal Practice: felonious assault : conviction of lesser offense. One indicted under Revised Statutes, 1889, section 8489, for a felonious assault may be convicted of a felonious assault as defined by Revised Statutes, 1889, section 8490.
    
      Appeal from Henry Circuit Court. — How. D. A. DeArmond, Judge.
    Affirmed.
    
      Calvird & Lewis for appellant.
    The indictment does not charge the commission of any offense under section 3490, Revised Statutes, 1889. The offense charged belongs to the first class of offenses •defined by section 3489, Revised Statutes, 1889, i. e., shoot at or stab. And this class of offenses is not •embodied in section 3490, Revised Statutes, 1889. State v. Comfort, 5 Mo. 357; State v. Phelan, 65 Mo. 547; State v. Hstis, 70 Mo. 434; State v. Burk, 89 Mo. 635 ; State v. Robb, 90 Mo. 30.
    
      John M. Wood, Attorney General, for the State.
    Where the indictment charges an offense under section 3489, defendant may be convicted under section 3490, Revised Statutes, 1889. State v. Frank, 103 Mo. 120; State v. Melton, 102 Mo. 683.
   Thomas, J.

The defendant was indicted in the circuit court of Henry county for a felonious assault upon Seely Kline under section 3489, and was found ..guilty of an assault as defined by section 3490, Revised Statutes, 1889, and sentenced to imprisonment in the penitentiary for two years.

It is the settled law of Missouri that upon “an indictment for an assault with intent to commit a felony, or for a felonious assault, the defendant may be convicted of a less offense. R. S. 1889, sec. 3950, State v. Burk, 89 Mo. 635; State v. Schloss, 93 Mo. 361; State v. Frank, 103 Mo. 120; Stale v. Buchler, 103 Mo. 203.

This being the only error assigned and no other error appearing of record, the judgment of the trial court is affirmed.

All the judges of this division concur.  