Rambo v. State
134 Ala. 71
Ala.
1901
Check Treatment
TYSON, J

The presiding judge evidently overlooked the difference in the'phraseology Of the act of 1884-85 under which Chamblee’s case (78 Ala. 466) was decided and which phraseology was' carried' into the act of February, 1887, and the section of the Code (5004) under which the special venire in this case was drawn. The difference was pointed out in Adams v. The State, 133 Ala. 166; 31 So. Rep. 851. The same error was committed in that case that was committed upon the trial of this with respect to ordering one special venire for the trial or two or more capital cases. Indeed with respect to this matter there is no substantial difference between -the- facts of the two cases. For this error the judgment of conviction must be reversed. Since the judgment must be reversed, and as a conviction was had only for “an assault with the intent to rob,” and not for robbery, it is unnecessary to review the action of the court in refusing charges bearing solely upon the guilt or innocence of defendant as to the crime of robbery. We shall, therefore, confine our discussion to those that relate to the offense for which he was convicted and for which he may again be tried. Robbery being an offense against the person as well as against the property, itl cannot be seriously doubted that a charge of robbery involves the charge of an assault with the intent to rob, and that a conviction may be had for *74lesser offense under1 an indictment charging the greater. And for that matter a conviction may be had for larceny or for an attempt to rob, or for an assault, or for am assault and battery if committed — a charge of all of these offenses being included in the charge of the greater. — § 5306 of Crim. Code; Morris v. The State, 97 Ala. 82; Allen v. The State, 58 Ala. 98; Thomas v. The State, 91 Ala. 34; Brown v. The State, 120 Ala. 432.

There was evidence tending to support the conviction as well as tending to support each of the minor offenses designated above, .the weight and sufficiency of which was for the jury. It follows 'therefore that charges “E,” 10, 8, 6, 5, 4, and 2 were, correctly refused.

Charge 11 invaded the province of the jury and for that reason was properly refused.

We have examined the various exceptions reserved to the rulings upon the admission of evidence, and find no error in any of them.

Reversed and remanded.