DAVID E. BLAIR, P. J.
Defendant was convicted in the criminal court of Greene county of the crime of assaulting and wounding one Gordon Pierce with an automatic pistol, thereby endangering his life. Trial by jury resulted in a verdict of guilty as charged, and punishment by imprisonment in the county jail for 12 months and by a fine of $100. After moving unsuccessfully for a new trial and in arrest of judgment, defendant was duly sentenced upon such verdict and thereafter appealed. This court has jurisdiction of the case because the conviction was for a crime punishable by imprisonment in the penitentiary, even though such punishment was not imposed by the jury. State v. Woodson, 248 Mo. 705, 154 S. W. 705; State v. Underwood, 254 Mo. 469, 162 S. W. 184.
A careful reading of the record has resulted in the conclusion that the facts immediately attteiccling the difficulty both from the viewpoint of the state, and from the viewpoint of defendant, are fairly set forth in the statement of facts in the brief of the learned Attorney General, from which we quote as follows:
"The evidence introduced on behalf of the state tended to prove the following:
"On the morning of December 2, 1921, in Greene county, Mo., N. W. Pierce and his son, Gordon, were working about the house of the older Pierce and defendant, John Gabriel, drove up in a wagon in front of the house and stopped and began making signs with his hand up to his face. The Pierces were about 30
feet from the road where defendant was. Gordon Pierce, the son, observing this conduct on the part of the defendant, told him to drive on down the road, whereupon the defendant said, `God damn you, I don't have to, I own as much of this road as you do,' and pulled back his sweater and ran his hand into his pocket. Gordon Pierce then picked up a rock and threw it at defendant and hit him about the top of the hip. Defendant then climbed over the front of the wagon and stepped down on the ground. He then put his left hand upon the wagon body and the other hand over it and began shooting into the Pierce yard, which resulted in striking Gordon Pierce three times. Five or six shots were fired. Two shots struck him in the right leg and one in the other knee. The bullets penetrated entirely through the leg. The wounds were dressed and treated by Dr. Arthur Knabb. Two of the shots went past him about the level of his head back toward his father and uncle, who were just back of him.
"It appeared that the Pierces and defendant were unfriendly and had had difficulty prior to this time, about a road which crossed a part of the Pierce land, and about Pierce's stock bothering defendant, which the defendant put up and refused to release until he was paid for his trouble in doing so, and that the defendant made serious threats at various times towards the Pierces. It also appears in evidence that the defendant had been carrying a pistol prior to this time as a result of the feeling existing between them, which fact was known to the Pierces. The pistol was a .32 automatic Colt's and held nine shots.
"The evidence offered on behalf of the defendant tended to prove the following:
"On the morning of the shooting defendant had been to a neighbor's with his wagon and team and about 10 o'clock, while on his way back, when he got to the corner of the Pierce yard, he saw old man Pierce and his son, Gordon, and a man by the name of Thompson, who was Pierce's brother-in-law, out at the corner of the house talking, and Gordon was looking at the defendant with a very hard stare, and then started to head him off in front of the house. When Gordon got within three or four feet of the fence he stopped and picked up three rocks and said, `You get down in the road, you God damn son of a bitch, and 1 will knock your God damn head off.' He then threw a rock and just missed defendant's head, and threw other rocks just as fast as he could. Thompson got ahead of the horses when defendant started to get his horses and dodged a rock, and Gordon threw another time and hit the horses, and then he hit defendant on the hip. Defendant then tumbled out of the wagon over the front wheel. He had his pistol in a belt and holster in his overalls but did not draw or attempt to draw it until he was knocked out of the wagon and was still being thrown at. He then reached up and got hold of his wagon and pulled himself up and drew his gun and turned it into Gordon's legs, shooting at him but not trying to kill him. At that time Gordon had thrown five rocks and had another up ready to throw when defendant shot. Defendant shot six times from a .32 Colt's automatic, which held nine shots, but had only six in it at the time. After emptying the pistol defendant took hold of the wagon with the band that had the pistol in it and the lines with the other and started on up the road toward his home, which was only a short distance from the Pierces."
Previous threats of the Pierces and of the defendant were shown. A state of bad feeling had existed between them for some time. The familiar array of character witnesses was used, both by the state and the defendant, to show that defendant's reputation for truth and veracity was good or bad, depending apparently on the state of feeling of the various witnesses toward defendant and the Pierces. The issue of the character of Gordon Pierce and his father extended to their reputations for turbulence, quarrelsomeness, etc., as well as for truth and veracity. The usual division of opinion appeared and left the issue in such shape that the jury might well have declared a draw.
I. The sufficiency of the information is assailed. Omitting formal parts, it reads as follows:
"O. J. Page, prosecuting attorney within and for the county of Greene, in the state of Missouri, under his oath of office informs the court that John Gabriel, late of the county and state aforesaid, on the 2d day of December, A. D. 1921, at the county of Greene and state of Missouri, did then and there willfully, unlawfully, and feloniously make an assault in and upon one Gordon Pierce, with an automatic pistol, loaded with powder and metal bullets, and did then and there shoot and wound him the said Gordon Pierce and by said acts of assaulting and shooting, did then and there feloniously and unlawfully endanger the life of the said Gordon Pierce—contrary to the form of the statute in such cases made and provided and against the peace and dignity...
