At the August term, 1897, of the circuit court of Crawford county defendant was convicted of the crimes of burglary and larceny, and his punishment fixed at three years imprisonment in the peniten
On the night of the twenty-ninth day of October, 1896, the store house of Bass, Vaughn & Lark at Steel-ville, Crawford county, was broken into, and two double action revolvers of Harrington & Richards make were stolen, and whatever money was left in the cash drawer was also taken. The entry was made through a back window, out of which a pane of glass was broken, thus making a place large enough, and through which the burglar entered. One of the revolvers was of thirty-two calibre, and the other thirty-eight. They were worth $5 each, and the amount of money taken was something near $3.
A short time after the burglary defendant was found in possession of a new revolver of the same make as those taken from the store, and the same calibre as that of one of them, and upon being questioned as to how he came by it made conflicting statements. To one witness he stated that he won it in a game of “craps” in Steelville; and to another that he had gotten it from his brother-in-law in a trade with him. The store was securely closed up about seven o’clock on the evening of the night of the burglary. Sometime between ten and eleven o’clock that night defendant was seen hanging around the front of the building.
Defendant introduced evidence tending to show that he purchased the pistol found in his possession from one Odel.
Defendant in his motion in arrest challenges the sufficiency of the indictment, but without we think any ground therefor. It is in accord with forms often approved by this court, and in so far as we are able to perceive free from objection.
A number of causes are assigned in the motion for a new trial why the verdict should be set aside, and a
The point is «also made in the motion for a new trial that during the trial statements were made by different persons in the presence and hearing of the jury, to the effect that defendant was a thief, and had once before been convicted of burglary and larceny. But no such question was preserved by the bill of exceptions. The mere fact of assigning it as error, in the motion for a new trial, is not sufficient. Pacts stated in a motion of this character do not prove themselves, but must be preserved by bill of exceptions or otherwise proven or they will not be noticed on appeal even if erroneous. State v. Smith, 114 Mo. 406; State v. Foster, 115 Mo. 448; State v. Welsor, 117 Mo. 570; State v. Grant, post, 56.
Defendant also insisted that a new trial should have been granted him upon the ground of newly discovered evidence. In support of this ground for a new trial, defendant introduced the affidavit of one James I. Towell, in which he contradicts the statements of one A. W. E. Ross, who testified in behalf of the State that he saw the defendant near the front part of the store house in question, about twelve o’clock on the night upon which it was burglarized, and that he
The instructions presented the case very fairly to the jury, and in so far as we have been able to discover, ■ are free from objection.
The weight of the evidence was for the jury, and the court having approved of their verdict, we are not disposed to interfere. We accordingly affirm the judgment.