Opinion
4 Div. 349.
June 8, 1937. Rehearing Denied June 15, 1937. Reversed after Mandate October 26, 1937.
Appeal from Circuit Court, Houston County; D.C. Halstead, Judge.
Ed Kelly and Met Monday were convicted of robbery, and they appeal.
Reversed and remanded.
Certiorari granted by Supreme Court in Kelly v. State (4 Div. 974) 176 So. 807.
The following charges were refused to defendants:
"1. The court charges the jury that an indictment for robbery also embraces the charge of larceny."
"4. The court charges the jury that an indictment for robbery also embraces the charge of assault and battery."
W. G. Hardwick, of Dothan, for appellant.
Under a charge of robbery a conviction for larceny or assault may properly be had. It was error for the court to refuse special charges so instructing the jury. Ross v. State, 16 Ala. App. 393, 78 So. 309; Robertson v. State, 24 Ala. App. 237, 133 So. 742.
A. A. Carmichael, Atty. Gen., and John J. Haynes, Asst. Atty. Gen., for the State.
The evidence makes out a case of robbery or nothing. The charges requested and refused were inapt.
If we are to be consistent — and we propose to be — we must reverse the judgments of conviction here appealed from on the authority of our own decision in the case of Robertson v. State, 24 Ala. App. 237, 133 So. 742. Here, as in the case cited, the indictment charged, in the proper way, the offense of robbery. But that included, as pointed out in the authorities cited in our Robertson Case, supra, the lesser offenses of larceny and assault and battery.
Appellants, here, were entitled to have the jury so instructed. And for the refusal of their written requested charges numbered in pencil on the transcript 1 and 4, the judgments of conviction are reversed and the cause remanded. We find no other erroneous ruling — the action of the court in overruling appellants' motion to set aside the verdict and grant them a new trial not being presented.
Reversed and remanded.