State v. Farrar
38 Mo. 457
Mo.
1866
Check Treatment
Fago, Judge,

delivered the opinion of the court.

There are several points raised by the bill of exceptions and brief in this case, only one of which it is deemed necessary to consider. The appellant was indicted in the Bol-linger Circuit Court for robbery in the first degree. There was but one count and one offence charged. There was a trial had and conviction for robbery in the second degree. The distinction between these two offences under our statute hap been well defined by a former decision of this *458court in the case of State v. Jenkins, 36 Mo. 372. It is very clear that a conviction cannot be had, nor judgment given, for robbery in the second degree, where the charge is robbery in the first degree. The reasons given in the determination of the case referred to are adopted here as being sufficient to authorize the reversal of this case, it being directly in point.

The other judges concurring,

the judgment will, be reversed and the cause remanded for a new trial.