| Mo. | Nov 21, 1898
— 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
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" court="Mo." date_filed="1847-10-15" href="https://app.midpage.ai/document/state-v-rector-6612185?utm_source=webapp" opinion_id="6612185">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" court="Mo." date_filed="1858-03-15" href="https://app.midpage.ai/document/state-v-mclaughlin-8000332?utm_source=webapp" opinion_id="8000332">27 Mo. 111; State v. Campbell, 115 Mo. 391" court="Mo." date_filed="1893-05-02" href="https://app.midpage.ai/document/state-v-campbell-8010884?utm_source=webapp" opinion_id="8010884">115 Mo. 391; State v. Fischer, 124 Mo. 460" court="Mo." date_filed="1894-11-05" href="https://app.midpage.ai/document/state-v-fischer-8011487?utm_source=webapp" opinion_id="8011487">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.