174 So. 47 | Miss. | 1937
Appellant was indicted on a charge of "attempted burglary." The proof introduced by the state showed that the offense was completed. The principal instruction granted at the request of the State authorized the jury to convict "if they believed from the evidence beyond every reasonable doubt, that Sam Williams did wilfully, unlawfully, feloniously and burglariously break and enter," etc. The verdict was that the defendant was guilty as charged. In the judgment the offense is described as attempted robbery.
Section 794, Code 1930, provides that "a person shall not be convicted of an assault with intent to commit a crime, or of any other attempt to commit an offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault or in pursuance of such attempt." Under this section it was held in Davis v. State,
Reversed and remanded.
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