BLAND, P. J.
On February 11, 1898, Charles Walker filed tbe following affidavit before O. H. Coggeshall, a justice of tbe peace in and for St. Louis county:
“State of Missouri,
“County of St. Louis.
“Before me, C. H. Coggeshall, a justice of tbe peace, within and for tbe county aforesaid, personally came Charles [662]*662Walker, who being duly sworn according to law deposes and says, that on or about the eleventh day of February, A. I). 1898, in the County of St. Louis and State of Missouri, Martha Washington and Maggie Walker, did on purpose and of malice aforethought assault and beat one Elizabeth Walker with certain deadly weapons, to wit, with rocks and stones with the intent then and there the said Elizabeth Walker to kill, and further deponent saith not.T
This affidavit was used as a basis by the prosecuting attorney for the following information, to wit:
“State of Missouri,
“County of St. Louis.
“F. A. Heidorn, Prosecuting Attorney, within and for the county of St. Louis, in the State of Missouri, acting herein under his oath of office and upon the affidavit of Charles Walker herewith filed, informs said O. H. Coggeshall, a jristice of the peace, within and for the county aforesaid, that on the eleventh day of February, in the year eighteen hundred and ninety-eight, at said county of St. Louis and State of Missouri, one Martha Washington and Maggie Walker did then and there willfully and unlawfully make an assault in and upon one Elizabeth Walker, and her, the said Elizabeth Walker, then and there willfully and unlawfully did touch, strike, beat, bruise, wound and illtreat, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State.”
“F. A.
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BLAND, P. J.
On February 11, 1898, Charles Walker filed tbe following affidavit before O. H. Coggeshall, a justice of tbe peace in and for St. Louis county:
“State of Missouri,
“County of St. Louis.
“Before me, C. H. Coggeshall, a justice of tbe peace, within and for tbe county aforesaid, personally came Charles [662]*662Walker, who being duly sworn according to law deposes and says, that on or about the eleventh day of February, A. I). 1898, in the County of St. Louis and State of Missouri, Martha Washington and Maggie Walker, did on purpose and of malice aforethought assault and beat one Elizabeth Walker with certain deadly weapons, to wit, with rocks and stones with the intent then and there the said Elizabeth Walker to kill, and further deponent saith not.T
This affidavit was used as a basis by the prosecuting attorney for the following information, to wit:
“State of Missouri,
“County of St. Louis.
“F. A. Heidorn, Prosecuting Attorney, within and for the county of St. Louis, in the State of Missouri, acting herein under his oath of office and upon the affidavit of Charles Walker herewith filed, informs said O. H. Coggeshall, a jristice of the peace, within and for the county aforesaid, that on the eleventh day of February, in the year eighteen hundred and ninety-eight, at said county of St. Louis and State of Missouri, one Martha Washington and Maggie Walker did then and there willfully and unlawfully make an assault in and upon one Elizabeth Walker, and her, the said Elizabeth Walker, then and there willfully and unlawfully did touch, strike, beat, bruise, wound and illtreat, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State.”
“F. A. Heidorn.
“Prosecuting Attorney.”
“Filed February 15, 1898.”
On trial before the justice Maggie Walker was acquitted, but Martha Washington was convicted; she appealed to [663]*663the circuit court, where she was again convicted. After unavailing’ motions in arrest and for-new trial filed in the circuit' court, she appealed to this court.
I. The only question presented for our consideration by the record, and the only one relied on by appellant for a reversal, is as to the sufficiency of the information to support the judgment. The contention of appellant is that the offense charged in the information is not the same offense charged in the affidavit upon which the information is based, and the argument is that as the affidavit charges a felonious assault, and the information a common assault, the latter is not supported by the former. Granting that the affidavit does substantially charge a felonious assault, a common assault is a lower grade of the same offense, and is embraced in and comprehended by the affidavit, and the defendant can not be heard to complain that she was prosecuted and convicted of a grade of the offense less than the one of which she was originally charged.
II. The affidavit does not charge that the assault was feloniously made, and hence does not technically charge a felonious assault. On an indictment charging the offense in the language of the affidavit the defendant could not have been convicted of a felonious assault, but might have been convicted of a common assault. In our judgment it was permissible for the prosecuting attorney to carve out of the affidavit any offense comprehended in it, and to prefer his information for such offense using the affidavit as a foundation therefor. In either view of the affidavit, whether it charges a felonious assault or a common assault, it supports the information, and the judgment is affirmed.
All concur.