State v. Underwood, 254 Mo. 469

State v. Underwood

254 Mo. 469 | Mo. | 1914

WALKER, J.

In an information filed in the circuit court of Shannon county, appellant was charged under section 4482, Revised Statutes 1909, with, an assault with, intent to kill, and upon a trial was found guilty as charged and his punishment assessed at three months’ imprisonment in the county jail and a fine of $100', this being the minimum punishment pre*470scribed for the offense under the provisions of section 4482, supra.

On tbe 13th day of September, 1911, he was granted an appeal to this court, but same was not perfected and the transcript of the proceedings filed here until June 7, 1913. Under the provisions of section 5313, Revised Statutes 1909', the Attorney-General filed a motion to dismiss the appeal on the ground' that the same had not been perfected within twelve months from the time the same was granted.

Appellant contends in opposition to this motion that he has never been convicted of a felony, and that when this appeal was taken there was no limit as to the time of perfecting an appeal in a misdemeanor case, the statute in relation thereto (Sec. 2717, R. S. 1899) having been repealed in 1909 (Laws 1909, p. 462) prior to the commission of the offense herein charged and not re-enacted until long subsequent thereto. [Laws 1913, p. 226.]

The distinction between felonies and misdemeanors made by our statute renders appellant’s contention without merit. As we held in State v. Woodson, 248 Mo. 705, the term “felony,” under our code, means any offense for which the offender on conviction shall be liable to be punished with death or imprisonment in the penitentiary. [Sec. 4923, R. S. 1909.] The term “misdemeanor” includes every offense punishable only by fine or imprisonment in a county jail or both. [Sec. 4925, R. S. 1909.]

The offense with which the appellant is charged is one for which he was liable to be punished by imprisonment in the penitentiary, but the minimum punishment for this offense was by fine or imprisonment in the county jail or both. His offense, therefore, was not changed from a felony to a misdemeanor by the assessment of his punishment at a fine and imprisonment in a county jail, especially in view of the fact that the jury did not find him guilty of a common *471assault, which, it might have done under the provisions of section 4904, Revised Statutes 1909, but found him “guilty as charged” and assessed his punishment at the minimum prescribed for the felony. The conviction having been for a felony, it was proper that the appeal be perfected to this court. This not having been done within the time required by the statute (section 5313, supra), the motion of the Attorney-General to dismiss the appeal should be sustained, and it is so ordered.

All concur.