
    The State v. Fields, Appellant.
    
    Division Two,
    February 4, 1896.
    Criminal Practice : indictment: instructions. Where, in a criminal ease it appears that the indictment is sufficient, that the instructions fairly presented the law, and that the defendant otherwise had a fair and impartial trial, the judgment will he affirmed.
    
      Appeal from Greene Criminal Court. — Hon. James J. Gideon, Judge.
    Affirmed.
    
      Harrington & Young for appellant.
    
      JR. F. Walker, attorney general, for the state.
   Burgess, J.

This is an appeal by defendant from a judgment of the criminal court of Greene county, upon an indictment in that court, charging him with feloniously assaulting, with malice aforethought with a deadly weapon with intent to kill, one Ernest Fleming, upon the trial of which cause a verdict of guilty was found by the jury, who fixed his punishment at five years’ imprisonment in the penitentiary.

On the seventh day of March, 1895, defendant went to the house of Ernest Fleming in Springfield, Missouri, and asked him if one Lucy Jarrett, who was then just leaving, had been there, and on • being answered by Fleming in the affirmative, without any cause or justification, assaulted and cut him with a knife which he then had in his hand. Upon examination a deep wound was found in Fleming’s left breast which had been inflicted by defendant.

Defendant is not represented in this court.

There are nine assignments of error in defendant’s motion for a new trial. The first four are to the effect that the verdict of the jury is against the evidence and law as declared by the court; and are without merit.

The fifth assignment is, that the punishment imposed by the jury is excessive, which is not borne out by the evidence and facts connected with the assaulting and wounding as disclosed by the record.

Another assignment is, thát the court erred in giving instructions to the jury, but an examination of them has satisfied us that they are free from substantial objection, and fairly presented every phase of the case to the jury.

The seventh and eighth assignments are that the court erred in admitting ' improper evidence to .go to the jury on the part of the state, and in rejecting competent and relevant evidence offered by defendant. We have looked in vain through the record, to find some ruling of the court upon which to predicate either of these assignments and have been unable to do so.

The ninth assignment is bottomed on newly discovered evidence, but it does not appear from the record what the evidence was, and with respect to this point there is nothing before us for consideration.

The indictment seems to be without fault. The defendant had a fair-and impartial trial'and the judgment should be affirmed. It is so ordered.

Gantt, P. J., and Sherwood, J., concur.  