Rogers and Lyman were separately indicted, tried, and convicted for robbing S.S. Hardin of a pistol.

Rogers moved for a new trial upon the grounds: 1. Error in charge of court (error not specified). 2. Verdict is contrary to the law and *Page 451 evidence. 3. Evidence insufficient to support the verdict. In addition to these grounds, Lyman urged error in not postponing the case.

The charge of the court is correct when tested by the evidence; and upon the vital issue of the case, namely, was the pistol taken feloniously, that is, "with intent to deprive the owner of its value, and to appropriate same to the use and benefit of either of the parties engaged in the taking," the court gave the appellants' requested instructions. There is no bill of exceptions in either case.

As Hardin, when the pistol was taken, had on his person a watch and chain, and in his pockets $250 in currency and $25 in silver, and as neither of the parties engaged in the assault upon him had made an attempt to take or alluded to the money or watch, appellants contend that robbery was not intended, but that the pistol must have been taken for some other purpose than an intention to deprive Hardin of the value of the pistol, and to appropriate it, etc. As said above, this theory of the case was submitted in both cases to the jury by instructions, at the instance of counsel for appellants.

We have read the statement of facts in both cases carefully, and in connection with able argument of counsel for the appellants, and feel that we would not be warranted in reversing the judgments, on either ground relied upon, to-wit, want of identity of appellants, and that robbery was not intended.

The Reporter will give the facts.

Judgments affirmed.

Judges all present and concurring.