¶1— The appellant was tried and convicted for an assault with intent to commit rape, and his punishment assessed at six months imprisonment in the county jail. The indictment was framed under section 3490, Bevised Statutes, 1889, and the second count on which appellant was convicted was as follows, to-wit:
*647“And the grand jurors aforesaid on their oath aforesaid do further present and charge, that, on or about the twentieth day of June, 1891, at the county of Newton and state of Missouri, one Henry Melton in and upon one Alice Ritter did unlawfully and feloniously make an assault, with intent her, the said Alice Ritter, then and there unlawfully, forcibly and against her will feloniously to ravish and carnally know, against the peace and dignity of the state.”
¶2Section 12, article 6, of the Constitution of 1875, and section 5 of amendment adopted November, 1884, excludes from the jurisdiction of this court “all cases of felony.” That the crime charged under the indictment herein was a felony is evident from the language of the statute (sec. 3490), where it is provided that the punishment shall be “by imprisonment in the penitentiary not exceeding five’ years, or in the county jail not less than six months, or by both a fine not less than $100 and imprisonment in the county jail not less than three months, or. by a fine not less than $100.”
¶3The fact that a lesser punishment than imprison- - ment in the penitentiary was affixed in this case does not change the grade of the offense. The rule in this state is that an offense is a felony which may be punished by confinement in the penitentiary, not which must be so punished. State v. Deffenbacher, 51 Mo. 26; State v. Green, 66 Mo. 631; State v. Clayton, 100, Mo. 516; State v. Gilmore, 28 Mo. App. 561.
¶4As this is a case of felony, this court has no jurisdiction of this appeal, and the cause is hereby ordered transferred to the supreme court.