Indictment for assault with intent to kill, and based on section 3489, Revised Statutes 1889.

Indictment as follows: “The grand jurors of the state of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn, and charged on their oath, present that James Prosser, late of the city of St. Louis, aforesaid, and state aforesaid, on the 22nd day of October, 1895, at the city of St. Louis, aforesaid, with force and arms, in and upon one Albert T. Palmer, feloniously, willfully, on purpose and of his malice aforethought, did make an assault; and the said James Prosser with a certain weapon, to *626wit, a pistol loaded with gunpowder and leaden balls, then and there feloniously, willfully, on purpose and of his malice aforethought, did shoot off, at, against, and upon the said Albert T. Palmer, then and there giving to the said Albert T. Palmer, in and upon the body of him, the said Albert T. Palmer, with the pistol aforesaid, one wound, with the intent then and there, him, the said Albert T. Palmer, feloniously, willfully, on purpose and of his malice aforethought, to kill, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.”

The evidence on the part of the state was ample for conviction, and there was evidence of a contrary effect going to show that the pistol was accidentally discharged, inflicting a wound on the hand of Palmer, the prosecuting witness.

The jury at the close of the evidence returned the following verdict: “We the jury in the above entitled cause find the defendant guilty of an assault with intent to kill without malice aforethought, and assess his punishment at one year in the city jail and a fine of $250.”

Under the provisions of section 3950, Revised Statutes 1889, the jury was authorized to find defendant guilty of a less offense than that of which he was charged, the same being included in the charge made.

Though questioned by the motion in arrest, we hold the indictment good, and inasmuch as the instructions are correct, and in usual form, it only remains to say, judgment affirmed.