140 Mo. App. 726 | Mo. Ct. App. | 1910
The defendant was charged in an information with an assauit with a deadly weapon with intent to kill and murder. He was convicted of what is termed a common assault, and fined one hundred dollars, and thereupon he took his appeal to this court.
We think we have not jurisdiction of the cause. The charge is of a felony. An assault with intent to kill may be punished by imprisonment in the penitentiary. [Sec. 1848, Revised Statutes 1899.] And any crime which may have the penitentiary for its punishment, is a felony. [Sec. 2398, R. S. 1899.] This court has jurisdiction of misdemeanors alone and a misdemeanor is an ofíense punishable by fine or county jail only. These matters have been heretofore determined, and the fact that a punishment has been assessed at a fine does not affect jurisdiction. [State v. Gilmore, 28 Mo. App. 561; State v. Melton, 117 Mo. 618; State v. Zinn, 141 Mo. 329; State v. Melton, 53 Mb. App. 646.]
The case will be transferred to the Supreme Court.