
    Clinton v. The State.
    [No. 18,885.
    Filed November 28, 1899.]
    Assault and Battery.— Felonious Intent.- — Evidence.—Criminal Law. — Evidence that defendant and his associates declared they would kill the prosecuting witness, and that they perpetrated a savage and vicious assault upon him, whereby he was severely injured, is sufficient to sustain a finding of felonious intent, and the fact that he was not killed is no reason that defendant should have been acquitted of a felonious intent.
    Prom the Monroe Circuit Court.
    
      Affirmed.
    
    
      John B. Hast and Frank M. Cummings, for appellant.
    
      Wm. L. Taylor, Attorney-General, C. C. Hadley, Merrill Moores and James A. Zaring, for State.
   Jordan, J.

Appellant, together with another, was charged by affidavit and information with having committed an assault and battery upon Moses Stovall, with the felonious intent to kill and murder him. They were tried by the court and convicted of the crime charged, and sentenced to be imprisoned in the reformatory prison for an indeterminate period.

Appellant alone appeals, and the errors which he assigns relate to the sufficiency of the affidavit and information, and to the sufficiency of the evidence to sustain the conviction.

It appears that the paper originally certified to this court as the affidavit, upon which the information was based, was but a mere skeleton in form and substance. After the appeal had been taken, such proceedings were instituted, however, in the lower court, upon the part of the State, as resulted in a finding by that court that the affidavit filed in the cause, and the one upon which the information was founded, had been lost from the files; and thereupon the court ordered it to be restored and made a part of the record, which was accordingly done; and a transcript of the affidavit so restored, together with the transcript of the proceedings leading up to its restoration, has been duly certified to this court in response to a writ of certiorarij and the affidavit, together with the information, is now properly a part of the record in this appeal. The objections, therefore, made by appellant’s counsel to the paper appearing in the record when it was first filed in this court,' are obviated; and the affidavit and information in the cause, as now exhibited by the supplemental record, each sufficiently charges the crime of which the accused was convicted.

It is finally insisted that the trial court erred in denying appellant’s separate motion for a new trial, because, as contended, the evidence is not sufficient to support the judgment of conviction. While it is true, as is usually the case, that there is some conflict in the evidence, yet there is evidence which fully sustains and justifies in every particular the judgment of the trial court. It discloses that the accused and his associates perpetrated a very savage and vicious assault and battery upon the prosecuting witness, whereby he was severely injured. The declarations of the defendants that they would kill him, coupled with the merciless character of their attack upon him, fully sustain the finding of a felonious intent; and the mere fact that he may have escaped with his life lends no force to the insistence of appellant that he ought to have been acquitted of such an intent.

Judgment affirmed.  