
    176 So. 806
    KELLY et al. v. STATE.
    4 Div. 349.
    Court of Appeals of Alabama.
    June 8, 1937.
    Rebearing Denied June 16, 1937.
    Reversed after Mandate Oct. 26, 1937.
    W. G. Hardwick, of Dothan, for appellant.
    A. A. Carmichael, Atty. Gen., and John J. Haynes, Asst. Atty. Gen., for the State.
   RICE, Judge.

If we are to be consistent — and we propose to be — we must reverse the judgments of conviction here appealed from on the authority of our own decision in the case of Robertson v. State, 24 Ala.App. 237, 133 So. 742. Here, as in the case cited, the indictment charged, in the proper way, the offense of robbery. But that included, as pointed out in the authorities cited in our Robertson Case, supra, the lesser offenses of larceny and assault and battery.

Appellants, here, were entitled to have the jury so instructed. And for the refusal of their written requested charges numbered in pencil on the transcript 1 and 4, the judgments of conviction are reversed and the cause remanded. We find no other erroneous ruling — the action of the court in overruling appellants’ motion to set aside the verdict and grant them a new trial not being presented.

Reversed and remanded.  