At the December term, 1894, of the Cole county circuit court, the grand jury preferred the following indictment against A1 Johnson:
“The grand jurors for the state of Missouri, summoned from the body of the county of Cole, now here in court duly empaneled, charged and sworn to inquire within and for the county of Cole in the state of Missouri, upon their oath do present and charge that A1 Johnson, late of the county aforesaid, at and in the county aforesaid, on the thirteenth day of November, 1893, in and upon the body of one Samuel Stephens, feloniously, on purpose, and of his malice aforethought, did make an assault, and did then and there feloniously, on purpose, and of his malice aforethought, with a certain knife which he, the said A1 Johnson, in his right hand then and there had and held, cut and stab him, the said Samuel Stephens, in and upon the hand, head, arm and ear of him, the said Samuel Stephens, with intent the said Samuel Stephens feloniously, on *30purpose, and of Ms malice aforethought to kill and murder, against the peace and dignity of the state of Missouri.”
He was duly arraigned, tried and convicted, and sentenced to two years’ imprisonment in the penitentiary, and has appealed to this court.
The- testimony discloses these facts: That on November 13, 1893, a number of persons were standing in a saloon at Centertown, Cole county, Missouri, among whom was the prosecuting witness, Stephens; that while Stephens was standing at the saloon counter in the act of buying a pint of whiskey, the defendant, Johnson, asked the prosecuting witness: “Where is the old man?” Stephens replied? “Don’t know.” The defendant immediately walked around to where Stephens was standing and began cutting him with a knife; the defendant continued to cut him several times, and until Stephens had retreated and gotten out of his way.
The defense offered by the defendant was that he was not the person who did the cutting, but that it was done by one James Mack, who was present in the saloon at the time. This he attempted to show by statements of the various witnesses for the state. These statements were offered to contradict and impeach the witnesses, and were admitted by the court when a foundation therefor had been laid in the examination of the state’s witnesses.
The court instructed for assault with intent to kill' “on purpose,” and with “malice aforethought.” Defined “malice aforethought” and “on purpose.” It also instructed on the credibility of witnesses, defined reasonable doubt and gave defendant’s instruction thereon.
I. It is assigned for error that the court failed to instruct the jury on the offense prohibited by section *313491, Revised Statutes, 1889, which provides that if any person shall be maimed, wounded or disfigured, or his life be endangered by the act, procurement, or culpable' negligence of another, under such circumstances as would constitute murder or manslaughter if death -had ensued, the person by whose act such injury shall be occasioned shall be punished by imprisonment in the penitentiary not exceeding' five years, or by imprisonment in the county jail, or by fine, or by both fine and imprisonment in the county jail.
The charge in the indictment was the felonious assault and not for maiming or injury to the person stabbed. The indictment described an offense within the exact terms of section 3489 and the evidence fully sustained it. No effort was made to prove any other offense and no error was committed in confining the case to the crime charged by the indictment and established by the evidence. State v. Melton, 102 Mo. 683, does not conflict with this view in the least, but entirely accords with it.
II. There was no error in failing to instruct on flight, and certainly defendant can not complain that the court did not inform the jury that they could draw an unfavorable inference because, defendant left Centertown the night he stabbed Stephens.
III. The court very properly excluded the affidavits offered to show that the counsel for state made an improper reference to the; failure of defendant to testify in his own behalf. We have repeatedly ruled that this can only be shown by exception duly taken at the time.
IY. There was no error in refusing the offer of evidence to-show that one Mack did the cutting. It can hardly be said to have been an offer. The court had admitted the evidence tending' to impeach the state’s witnesses by proving they had said Mack did *32the cutting, and no witness was offered to show that Mack did in fact assault Stephens, or that defendant did not. The defendant was on trial for his own conduct that night and the jury was instructed that, unless they believed beyond a reasonable doubt that he cut and stabbed Stephens they must acquit him. Showing that Mack also stabbed Stephens would not exonerate Johnson, if they believed the evidence for the state. But there was no conflict in the evidence. All the testimony pointed to the guilt of defendant and the jury were fully justified in finding him guilty as charged, and their verdict is affirmed.
Burgess and Sherwood, JJ., concur.