Indicted under the provisions of section 3535, Revised Statutes, 1889, for stealing the cow of Valentine Rogers, in Barry county, the defendant on her change of venue to Newton county was convicted of the theft, and, sentence having been passed upon and judgment entered against her, she appeals to this court.
I. Complaint is made that the two instructions given at the instance of the state are erroneous; but we cannot notice the instructions because they have not been incorporated in the bill of exceptions, nor does the bill of exceptions contain a direction to the clerk to copy the same, etc. State v. Griffin, 98 Mo. loc. cit. 674.
II. Complaint is also made that a new trial should have been granted because of newly discovered evidence ; but we are not of this opinion. The affidavits .disclose no diligence, nor that the new evidence is so material as would be likely to change the result were a new trial granted. Nor does it appear that such evidence is not cumulative. State v. Welsor, 21 S. W. Rep. 443, and cases cited.
III. Moreover, the motion for a new trial was not accompanied by the affidavit of the defendant, as it should have been. 3 Graham & Waterman on New Trials, pp. 1067, 1071, 1073; State v. McLaughlin, 27 Mo. 111.
IV. The testimony in this cause, consisting as it did in part of damaging admissions of the defendant as well as much other testimony, was amply sufficient. There was some testimony to the contrary, but to the jury belonged the right and authority to determine the innocence or guilt of the defendant, and we are not authorized to disturb the verdict. Therefore .judgment affirmed.
All concur.