We experience difficulty in determining whether there is any record here which enables us to consider this case at all. However, the Attorney-General and the counsel for defendant in their briefs agree in the statement that the record proper is before *Page 116 us and agree as to what it contains. We will, therefore, consider it as presented by them.
The record shows that an information was filed in the criminal division of the Circuit Court of Jackson County, July 29, 1924, in which the defendant and one John Gurtis were charged with assault upon one Helen M. Anderson with intent to rob. A severance was granted, and he entered a plea of not guilty.
On August 8, 1924, a change of venue was granted, the cause transferred to Division 9 of the Jackson County Circuit Court.
On August 8, 1924, the defendant withdrew his plea of not guilty, and entered a plea of guilty, and sentence was deferred.
On September 5, 1924, the court pronounced judgment and sentenced the defendant McFadden to imprisonment in the penitentiary for thirty years. There was no allocution.
On September 6, 1924, the defendant filed a motion for a new trial and a motion in arrest, and a motion to set aside the plea of guilty, and for permission to enter plea of not guilty.
On September 8, 1924, the court, after taking evidence on the motion for a new trial and the motion to set aside the plea of guilty, overruled all of said motions. The defendant then appealed.
I. A question arises whether a bill of exceptions, properly authenticated, is before us for consideration — whether there is any record of its filing. The motion for a new trial was not filed until more than four days after the plea of guilty. A peculiar question arises in regard to the motion to set aside the plea of guilty, and for permission to enter a plea of not guilty filed after judgment. It could not be mentioned in the motion for new trial, if the latter had been filed in time. The motion assigns as reason for that request that the information was presented by James H. Anderson, assistant prosecuting attorney, whose sister, Helen M. Anderson, is alleged *Page 117 to have been assaulted by the defendant. That Anderson induced the defendant to plead guilty by certain "representations, warranties and guaranties" with which Anderson was powerless to comply; that Anderson desired the defendant to appear as a witness against his co-indictee John Gurtis, and to reveal the name of the third negro who participated in the assault; that Gurtis, at the time of the assault, had threatened to do further violence to Helen M. Anderson, and was prevented by McFadden; that Anderson, in the presence of Detective Higgins, told McFadden that if he would reveal the identity of the other negro and testify to the facts about the attempted robbery by Gurtis, and would plead guilty, that he, Anderson, would see that his punishment was assessed at not exceeding five years.
Appellant says in his brief that Anderson testified to these facts, as did Higgins, and also James F. Aylward, attorney for appellant; that no evidence was offered by the State to contradict this evidence of the inducements and promises held out to McFadden to induce him to plead guilty; that nothing was said about these guaranties to the judge of the court, and without knowledge of them he sentenced the defendant to imprisonment for thirty years; that defendant then for the first time realized that Anderson could not live up to his agreement in the matter, and for that reason asked the court to permit him to withdraw his plea of guilty and enter a plea of not guilty. Manifestly, if the motion for new trial had been filed in time, the matters presented in this motion to set aside the plea of guilty could not have been incorporated in it, because it could not be filed until after a judgment, nor until the defendant was apprised of the failure of the State to live up to its agreement. However, we find that we are able to dispose of the case without determining whether a proper record may be made of such proceeding.
II. Appellant attacks the information, which, omitting caption and verification, is as follows: *Page 118
"Now comes James H. Anderson, Assistant Prosecuting Attorney for the State of Missouri, in and for the body of the County of Jackson, and upon his oath informs the court that Jim McFadden and John Gurtis, whose Christian name in full is unknown to said Prosecuting Attorney, late of the county aforesaid, on the 24th day of July, 1924, at the County of Jackson, State of Missouri, did then and there feloniously on purpose and of their malice aforethought did make an assault in and upon one Helen M. Anderson, (and did then and there feloniously on purpose and of their malice aforethought assault, strike, beat, bruise and wound the said affiant) with the intent then and there her the said Helen M. Anderson feloniously, on purpose and of their malice aforethought to rob her the said Helen M. Anderson of her money and personal property from her person and against her, then and there by force and violence to her person, and by putting her, the said Helen M. Anderson in fear of an immediate injury to her person, against the peace and dignity of the State.
"JAMES ANDERSON, "Assistant Prosecuting Attorney."
Appellant's theory is that the case is founded on Section 3262, Revised Statutes 1919, defining assault with intent to kill. That section defines the offense as one where a person shall, "on purpose and of malice aforethought, shoot at or stab another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish or rob such person, or in the attempt to commit any burglary or other felony," etc.
The information fails to charge that there was a deadly weapon or any force likely to produce death or great bodily harm, and in that respect it is defective under that section. But it states an offense under Section 3263, which provides that every person who shall be convicted of an assault with intent to kill or do great bodily harm or to commit any robbery, etc., "or other felony," shall be punished, etc. The information sufficiently describes *Page 119 the offense defined in that section so far as this objection is concerned, because the offense is complete without the weapon or other means likely to produce death, etc.
Under Section 3262, the punishment for conviction is imprisonment in the penitentiary for not less than two years, with no maximum limit. The punishment under Section 3263 is not exceeding five years, with a minimum of imprisonment in the county jail not less than three months, or a fine of not less than one hundred dollars. The court could properly sentence the defendant to thirty years under the former section, while five years was the limit under the latter. The appellant further claims the information is defective because it alleges that the assault was made, not upon Helen M. Anderson, but upon the affiant James H. Anderson. Whether he was present with his sister does not appear. The language which we have placed in parenthesis in the information alleges that the assault was made upon him, and may be omitted entirely from the information as surplusage, and it correctly declares an assault upon, with intent to rob, Helen M. Anderson.
Section 3908, Revised Statutes 1909, provides that no indictment or information shall be deemed invalid "for any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and the person charged."
It is plain that the statement of felonious assault upon the affiant may be omitted entirely and the information would clearly state an assault upon Helen M. Anderson for the purpose to rob her. Appellant also argues that the use of the words "on purpose and of malice aforethought" characterizes the information as being framed under Section 3262. That statement would not be inappropriate in an information under Section 3263, for by the terms of that section it includes every person who shall be guilty of assault with intent to rob, etc.; it would be entirely immaterial whether assault was made on purpose and of malice aforethought or not. As the *Page 120 information, therefore, sufficiently charges an offense under Section 3263, for which the maximum punishment is five years, the trial court erred in fixing the punishment under the information at thirty years.
The judgment is reversed and the cause remanded and the trial court may, as his discretion suggests, enter judgment and sentence against the defendant in accordance with the statute, Section 3263, or he may permit the defendant to withdraw his plea of guilty, enter plea of not guilty, and proceed to trial on the merits. All concur.