
    Arthur Shoemake and Link Rollins v. The State.
    No. 6316.
    Decided June 8, 1921.
    Robbery—Indictment—Assault—Pleading—Motion in Arrest of Judgment.
    Where tlie indictment for robbery by violence, etc., omitted the allegation that the defendant took the property of the injured party by means of an assault, the same was insufficient on motion in arrest of judgment.-
    Appeal from the District Court of Brazoria. Tried below before the Honorable M. S. Munson.
    Appeal from a conviction of robbery by violence, etc.; penalty, five years’ imprisonment in the penitentiary.
    
      The opinion states the case.
    No brief on file for appellant.
    
      R. H. Hamilton, Assistant Attorney General, for the State.
    Cited Barfield v. State, 39 Texas Crim. Rep., 342, and other cases.
   LATTIMORE, Judge.

The appellants were convicted in the District Court of Brazoria County of the offense of robbery, and the punishment of each fixed at five years’ confinement in the State penitentiary.

Appellants filed a motion in arrest of judgment based on the insufficiency of the indictment to charge any offense against the laws of the State. Our statute under which this prosecution is brought makes it an offense to make an assault upon another, and by means of such assault, and by violence and putting in fear of life, etc., fraudulently taking from such person his property. Examining the indictment herein we find that same omits the allegation that the appellants took the property of the injured party by means of an assault; that part of the indictment appearing as follows: “did then and there unlawfully in and upon Antonio Barajas make an assault and then and there by said -fraudulently and against the will of the said Barajas, take from the person,” etc. Our Assistant Attorney General confesses error on the part of the State in the overruling of said motion in arrest of judgment, admitting said indictment to be defective in the particular mentioned, and for said error the judgment of the lower court will be reversed and the cause dismissed.

Dismissed.  