The defendant was tried and convicted of an assault with intent, to rape, in the circuit, court of Newton county, and his punishment assessed at six months in the county jail. He was indicted under section 3490, Revised Statutes, 1889. His appeal was taken to the St. Louis court of appeals, but that court, not having jurirdiction of “cases of felony” (section 12, art. 6, constitution of Missouri, 1875, and section 5 of amendment thereto adopted in November, 1884), certified the appeal to this court.
I. The crime charged is a felony, as the offense denounced by the statute may be pimished by imprison*620mentin the penitentiary. The fact that less punishment than imprisonment in the penitentiary was assessed in this case, does not reduce the offense to a misdemeanor. State v. Deffenbacher, 51 Mo. 26; State v. Green, 66 Mo. 631; State v. Clayton, 100 Mo. 516; State v. Gilmore, 28 Mo. App. 561.
II. We have fully examined this record and the brief of counsel for. appellant, and we find no complaint in the motion for new trial, or elsewhere, of the instructions given by. the court; nor is it claimed that the court did not fully instruct upon all questions of law. No exceptions to evidence have been saved. Defendant simply asks that we hold that he demonstrated his innocence.. In this, he evidently overlooks the fact that this is an appellate court and it is not our province to usurp the functions of the jury. They heprd his evidence and found against him, and, as there was evidence from which they might so find, if they believed it, we have no right to interfere, on this ground alone. The judgment is affirmed.
All of this division concur.