Sherwood, J.
For an attempt made on the fifth day of July, 1894, to ravish Anonyma, a young girl not quite fifteen years of age, defendant was indicted in the county of Yernon, at the November term, 1894. In December following defendant requested and obtained a change of venue and one was awarded to Barton county, where a trial resulted in his conviction and sentence to the penitentiary for the term of five years, and he appeals to this court.
The record proper in this ease has been made out very well, but the bill of exceptions, that is to say, that [354]*354portion which contains the evidence, has been typewritten with a machine so old and decrepit that what purport to be the letters stagger across the page in zigzag courses, frequently overlapping each other, and frequently altogether omitted, and the result is that the evidence is almost illegible, and has required much time and pains to decipher it.
The testimony of the prosecutrix is to the effect: That on the third of July, 1894, she met the defendant standing, in front of the barber shop where he was employed, and as he passed he bowed to her. That on the fourth she took a walk with defendant, and again on the fifth, in the afternoon, they walked together out in the northeast part of Nevada, to a commons, and arranged to go again after supper. That about 6:30. she rode horseback to the commons, where she met defendant, who assisted her from her horse • that she took her riding skirt and spread it upon the ground and they both sat down upon it. That shortly thereafter she took off her hat. The place where they sat down seems to have been somewhat lower, though not a great deal, than the surrounding ground. The prosecutrix testified that after talking a few minutes the defendant pushed her over upon her back, got upon her, and attempted to rape her; that she resisted him and attempted to scream; that defendant attempted to get her clothes up, but she held them; that he only desisted when Wallace and his son and Strader came up.
Anderson testified he was in the barber shop where defendant was employed the evening of the fifth, and that defendant told him he had an engagement with a girl; that he didn’t know whether there was anything in it or not, but he was going to try it.
Old man Wallace, his son, Alfred Wallace, and Tom Strader testified that they came upon defendant and prosecutrix that evening upon a low place in [355]*355the commons; that when about fifty yards away they heard prosecutrix crying; that they quickened their pace, and when they got nearer they saw defendant on top of the prosecutrix, who was resisting him; that when defendant heard them he rolled off of her; that his pants were unbuttoned and his privates in full view; that he got up and buttoned up his pants; that defendant began cursing them, and old man Wallace knocked him down; that they attempted to catch him, but he ran away, leaving his hat, which they afterward took to the sheriff. Old man Wallace took the girl home and reported the matter to the sheriff and the city marshal.
Several witnesses were introduced by defendant, who testified, that in their opinion, and some of them from their points of view, defendant and the prosecutrix could easily have been seen from various houses in the neighborhood of the locality of the alleged assault. And the testimony of some of the witnesses for the prosecution seems to coincide with those for the defense on this point.
A number of witnesses saw defendant and the prosecutrix sitting together on the commons that evening, none of them however testify that they saw them thus sitting when the attempt was made which caused defendant’s arrest.
Long, for defendant, who “did not work only when 7? e felt like it, ” professes to have lain down within twenty feet of where defendant and the prosecutrix came up and sat down to talk, and saw nothing wrong with the couple, as two men were seen advancing from the east, when he left his resting place and returned to town. Underwood, another witness for defendant, saw from his porch, a half a quarter distant, defendant and the prosecutrix seat themselves, and then after a few minutes, when he was standing by his fence, he saw three [356]*356men come in from the north and advance to the place where defendant and prosecutrix were, then for the first time he heard talking, and it was then about dusk; the defendant and prosecutrix had been seated about fifteen minutes when these men came up, and they were walking pretty fast.
In his own behalf defendant testified; his testimony did not differ materially from that of the prosecutrix, except on the point of his attempted violence, etc., etc.
1. The first ground of contention on behalf of defendant is that his application for a continuance should have been granted. One of the chief grounds on which the application was based was this: “That one Prank Shade, who resides in the city of Nevada, Missouri, is a material witness for this defense, and, if present, would testify that he is well acquainted with the grounds and premises of the alleged assault with intent to rape, and that the place of alleged assault is so open and public, that no sane man would attempt to have sexual intercourse with a woman at said place in daylight, much less attempt the commission of rape.” A similar allegation is made as to A. C. Dempsey.
There were, as already seen, a number of witnesses who knew of, and testified to, the character of the ground where the violence was said to have been attempted, but whether at that place a “sane man would attempt to have sexual intercourse, etc., in daylight,” was a conclusion for the jury to draw, and not the alleged absent witnesses. Both of these witnesses were present when Shade testified as to the character of the ground, etc., etc. And Dempsey was present when the application for a continuance was heard, and testified that from a conversation had with one of the attorneys for defendant, he understood that his attendance was not needed.
[357]*357As to Mrs. Carrie Shade (wife of Frank) her affidavit was filed by the state and which showed that as to her the allegations in the application for a continuance were not true. The same may be said of Mrs. Dempsey’s affidavit. Although it is not in general admissible to file counter affidavits controverting the truth of the application for a continuance (State v. Good, ante, p. 114), yet where the counter affidavit is made by the witness mentioned in the application, then the counter affidavit may be received to controvert the truth of allegations made in the application respecting the affiant witness.
Other witnesses mentioned in the application as being absent were present at the trial and testified. This is true of Campbell and Isbell.
Cruce and others are mentioned in the application as those who would testify as to defendant’s reputation for truth and honesty; but as there were plenty of witnesses who testified as to this trait in defendant’s character, no harm was done in denying the application so far as concerns them.
As to witness Strevy, by whom it was expected to prove that the reputation of three of the state’s witnesses, Wallace and son, and Strader, was bad, it is enough to say that a continuance is not to be allowed merely to secure the attendance of an impeaching witness. State v. Howell, 117 Mo. 307.
The testimony of Mrs.
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Sherwood, J.
For an attempt made on the fifth day of July, 1894, to ravish Anonyma, a young girl not quite fifteen years of age, defendant was indicted in the county of Yernon, at the November term, 1894. In December following defendant requested and obtained a change of venue and one was awarded to Barton county, where a trial resulted in his conviction and sentence to the penitentiary for the term of five years, and he appeals to this court.
The record proper in this ease has been made out very well, but the bill of exceptions, that is to say, that [354]*354portion which contains the evidence, has been typewritten with a machine so old and decrepit that what purport to be the letters stagger across the page in zigzag courses, frequently overlapping each other, and frequently altogether omitted, and the result is that the evidence is almost illegible, and has required much time and pains to decipher it.
The testimony of the prosecutrix is to the effect: That on the third of July, 1894, she met the defendant standing, in front of the barber shop where he was employed, and as he passed he bowed to her. That on the fourth she took a walk with defendant, and again on the fifth, in the afternoon, they walked together out in the northeast part of Nevada, to a commons, and arranged to go again after supper. That about 6:30. she rode horseback to the commons, where she met defendant, who assisted her from her horse • that she took her riding skirt and spread it upon the ground and they both sat down upon it. That shortly thereafter she took off her hat. The place where they sat down seems to have been somewhat lower, though not a great deal, than the surrounding ground. The prosecutrix testified that after talking a few minutes the defendant pushed her over upon her back, got upon her, and attempted to rape her; that she resisted him and attempted to scream; that defendant attempted to get her clothes up, but she held them; that he only desisted when Wallace and his son and Strader came up.
Anderson testified he was in the barber shop where defendant was employed the evening of the fifth, and that defendant told him he had an engagement with a girl; that he didn’t know whether there was anything in it or not, but he was going to try it.
Old man Wallace, his son, Alfred Wallace, and Tom Strader testified that they came upon defendant and prosecutrix that evening upon a low place in [355]*355the commons; that when about fifty yards away they heard prosecutrix crying; that they quickened their pace, and when they got nearer they saw defendant on top of the prosecutrix, who was resisting him; that when defendant heard them he rolled off of her; that his pants were unbuttoned and his privates in full view; that he got up and buttoned up his pants; that defendant began cursing them, and old man Wallace knocked him down; that they attempted to catch him, but he ran away, leaving his hat, which they afterward took to the sheriff. Old man Wallace took the girl home and reported the matter to the sheriff and the city marshal.
Several witnesses were introduced by defendant, who testified, that in their opinion, and some of them from their points of view, defendant and the prosecutrix could easily have been seen from various houses in the neighborhood of the locality of the alleged assault. And the testimony of some of the witnesses for the prosecution seems to coincide with those for the defense on this point.
A number of witnesses saw defendant and the prosecutrix sitting together on the commons that evening, none of them however testify that they saw them thus sitting when the attempt was made which caused defendant’s arrest.
Long, for defendant, who “did not work only when 7? e felt like it, ” professes to have lain down within twenty feet of where defendant and the prosecutrix came up and sat down to talk, and saw nothing wrong with the couple, as two men were seen advancing from the east, when he left his resting place and returned to town. Underwood, another witness for defendant, saw from his porch, a half a quarter distant, defendant and the prosecutrix seat themselves, and then after a few minutes, when he was standing by his fence, he saw three [356]*356men come in from the north and advance to the place where defendant and prosecutrix were, then for the first time he heard talking, and it was then about dusk; the defendant and prosecutrix had been seated about fifteen minutes when these men came up, and they were walking pretty fast.
In his own behalf defendant testified; his testimony did not differ materially from that of the prosecutrix, except on the point of his attempted violence, etc., etc.
1. The first ground of contention on behalf of defendant is that his application for a continuance should have been granted. One of the chief grounds on which the application was based was this: “That one Prank Shade, who resides in the city of Nevada, Missouri, is a material witness for this defense, and, if present, would testify that he is well acquainted with the grounds and premises of the alleged assault with intent to rape, and that the place of alleged assault is so open and public, that no sane man would attempt to have sexual intercourse with a woman at said place in daylight, much less attempt the commission of rape.” A similar allegation is made as to A. C. Dempsey.
There were, as already seen, a number of witnesses who knew of, and testified to, the character of the ground where the violence was said to have been attempted, but whether at that place a “sane man would attempt to have sexual intercourse, etc., in daylight,” was a conclusion for the jury to draw, and not the alleged absent witnesses. Both of these witnesses were present when Shade testified as to the character of the ground, etc., etc. And Dempsey was present when the application for a continuance was heard, and testified that from a conversation had with one of the attorneys for defendant, he understood that his attendance was not needed.
[357]*357As to Mrs. Carrie Shade (wife of Frank) her affidavit was filed by the state and which showed that as to her the allegations in the application for a continuance were not true. The same may be said of Mrs. Dempsey’s affidavit. Although it is not in general admissible to file counter affidavits controverting the truth of the application for a continuance (State v. Good, ante, p. 114), yet where the counter affidavit is made by the witness mentioned in the application, then the counter affidavit may be received to controvert the truth of allegations made in the application respecting the affiant witness.
Other witnesses mentioned in the application as being absent were present at the trial and testified. This is true of Campbell and Isbell.
Cruce and others are mentioned in the application as those who would testify as to defendant’s reputation for truth and honesty; but as there were plenty of witnesses who testified as to this trait in defendant’s character, no harm was done in denying the application so far as concerns them.
As to witness Strevy, by whom it was expected to prove that the reputation of three of the state’s witnesses, Wallace and son, and Strader, was bad, it is enough to say that a continuance is not to be allowed merely to secure the attendance of an impeaching witness. State v. Howell, 117 Mo. 307.
The testimony of Mrs. Crawford, absent, who, as stated in the application, would testify to her acquaintance with defendant, was this: “That she often kept company with him in girlhood and womanhood and was often with him alone; that his conduct toward her was at all times and under all circumstances that of a gentleman toward a lady.” Of course such testimony as the foregoing could not be received.
Equally valueless is the supposed testimony of [358]*358Rowan, that he saw a yonng lady at Nevada, Missouri, whom he was afterward told was the prosecutrix, and she requested him to deposit a letter in the postoffice, addressed to defendant, and this letter is believed to contain an exoneration of defendant.
It is not to be wondered at that the trial court denied such an application as the foregoing. And the grounds justifying the denial of the original application are broad enough to embrace a denial of leave to file an amended one, because the same lack of good faith apparent in the first application would doubtless have characterized the second, and the trial court had the premises before it from which and the right thus to presume. Besides, it is a hazardous practice at best to permit an amended application for a continuance to be filed, and permission to do so rests exclusively in the discretion of the trial court. State v. Good, supra.
II. Objection is taken to the second instruction given at the instance of the state:
“The jury are the sole judges of the credibility of the witnesses, and of the weight and value to be given to their testimony. In determining such credibility, weight, and'value, you will take into consideration the character of the witness, his or her manner on the stand, his or her interest, if any, in the result of the trial, his or her relation to, or feelings toward, the defendant or the prosecutrix, the probability or improbability of his or her statements, as well as all the facts and circumstances in evidence,” etc., etc.
To begin with, the instructions in the cases of State v. Cook, 84 Mo. 49, and State v. Young, 99 Mo. 666, are directed to the defendant alone, viz.: “That in determining what weight you will give defendant’s testimony you should consider the fact that he is the party accused and on trial in this cause,” etc. 84 Mo. The one given in 99 Mo. is substantially similar to the one [359]*359just quoted. In this respect they differ from the one under consideration. The same may be said of State v. Fairlamb, 121 Mo. 137. Here, the testimony of defendant is not singled out as the subject of critical inspection and comment; but all the witnesses are placed on the same plane and treated just alike, a feature, as just seen, which does not obtain in the cases cited. And it is to be further noted that the word “will” has not an imperative force like the word “shall.” See Webster, Internat. Dict., under those words. Furthermore, it has never been held that the use of the word “should” or “shall,” though their use has been condemned, would constitute reversible error.
III. It is urged that error was committed by the court in permitting improper remarks to be made by the prosecuting attorney.
а. No objection was made or exception saved to those remarks and, therefore, they can not be considered. State v. Pagels, 92 Mo. 300; State v. Welsor, 117 Mo. 570; State v. Taylor, 98 Mo. 240.
б. But those remarks, if made, were not preserved in the bill of exceptions, and, therefore, can not be considered, for (c) ex parte affidavits can not supply what the bill of exceptions fails to preserve, and which it alone can preserve. State v. Hayes, 81 Mo. 574; State v. Howard, 118 Mo. 127; State v. Musick, 101 Mo. 260; State v. Blunt, 110 Mo. 322; State v. Brewer, 109 Mo. 648; State v. Taylor, 118 Mo. 153.
IY. It is said that the court admitted the testimony of the sheriff of Yernon county as to his arresting defendant at his boarding house, and this testimony it is said was received over defendant’s objection; but such objection was simply that the testimony was “incompetent and irrelevant,” which amounts to no objection at all. State v. Smith, 114 Mo. 406; State v. Moore, 117 Mo. 395; State v. Harlan, 130 Mo. 381.
[360]*360It is said, further, the court should have instructed the jury on the point whether defendant was fleeing from arrest. If this were so, or if the court failed to obey the mandate of section 4208, Revised Statutes, 1889, and fully instruct the jury on all questions, etc., defendant should have preserved the matter by saving an exception to the failure of the court to properly instruct the jury at the time such failure occurred. This he did not do. State v. Cantlin, 118 Mo. 111; State v. Paxton, 126 Mo. 500; State v. Nelson, ante, p. 184.
Y. The evidence already related is ample on which to base a conviction, and if the jury believed the testimony of the witnesses, that defendant, a .man twenty-nine years old and married, with a wife and child, attempted to ravish a girl not yet fifteen years of age, five years, the maximum of the legal penalty, was less punishment than he really deserved.
And his intent to ravish need not be established by his declarations, for in such a case acts speak louder than words. These remarks dispose also of the claim that the court should have instructed for “simple assault.” State v. Musick, 101 Mo. loc. cit. 271, 272.
VI. The indictment is in usual and approved form. • But it is said the indictment is insufficient because it is not signed by the prosecuting attorney. But this statement is untrue. The name of the prosecuting attorney appears subscribed to the indictment and the fact that such signature is preceded by the word uAttest:” is mere surplusage, and works no detriment. TJtile per mutile non vitiatur. Judgment affirmed.
All concur.