1. CRIMINAL LAW: Assault and Battery: Lesser Offense. The information charged malicious assault. A verdict for assault without malice, being for a lesser offense, was good.
2. CRIMINAL LAW: Appeal and Error: Bill of Exceptions. A bill of exceptions is the only proper repository for the instructions and motion for new trial, and the fact that they are copied in the clerk's transcript of the record proper does not present them for appellate review.
[773] ELLISON, J.
Appellant was convicted by a jury in the circuit court of Montgomery County of assault without malice upon one Guy Robertson by shooting and wounding him with a shotgun, in violation of Sec. 4409, R.S. 1939, Sec. 4015, Mo. Stat. Ann., p. 2821. The punishment assessed was a fine of $100. The information charged malicious assault, under Sec. 4408, R.S. 1939, Sec. 4014, Mo. Stat. Ann., p. 2817, for which the minimum punishment is a penitentiary sentence. But since the jury convicted appellant of the lesser offense the verdict is good. [State v. Dildine, 330 Mo. 756, 760 (8), 51 S.W.2d 1, 2 (8).]
No bill of exceptions has been brought up, and appellant has not filed a brief. We find no error in the record proper, and nothing calling for comment except that in the transcript filed here the motion for new trial and instructions are set out, though no exceptions are shown to adverse rulings thereon. A bill of exceptions is the only proper repository for the instructions and motion for new trial, and the fact that they are copied in the clerk's transcript of the record proper does not present them for appellate review: State v. Williams, 141 Mo. 264, 42 S.W. 937; State v. Hembree (Mo. Div. 2), 37 S.W.2d 448; State v. Rhodes, 220 Mo. 9, 119 S.W. 391; State v. Turpin, 332 Mo. 1012, 1016 (1), 61 S.W.2d 945, 947 (2).
The judgment is affirmed. All concur.