
    Napier et al. v. Commonwealth.
    (Decided November 21, 1930.)
    
      S. M. WARD and CHARLES WOOTON for appellants.
    J. W. CAMMACK, Attorney General, and SAMUEL B. KIRBY, JR., Assistant Attorney General, for appellee.
   Opinion op the Court by

Judge Dietzman

Reversing.

The appellants were convicted of the offense of robbery and sentenced to serve two years each in the penitentiary. As grounds for reversal, they insist that the court should have peremptorily instructed the jury to find them not guilty, or if- in error as to this, then the court should have granted them a new trial because the verdict is flagrantly against the evidence; secondly, that the trial court should have granted a new trial on account of newly discovered evidence; and, lastly, the instructions given were erroneous.

In view of the testimony of the prosecuting witness, the appellants were not entitled to a peremptory instruction; but whether the verdict is flagrantly against the evidence or not need not be decided at this time, since this case must be reversed on the ground of error in the instructions, and the evidence will probably not be the same on the next trial in view of what the appellants say they have discovered by way of testimony since the last trial.

The Attorney General very frankly, fairly, and correctly states in his brief that the instruction given on the trial of this case is so palpably erroneous that he does not desire to contest the appeal. By this instruction, the court simply submitted to the jury the question whether or not these appellants had “robbed” the prosecuting witness without telling the jury what were the constituent-elements of robbery, thus permitting the jury to determine for itself of what the .offense of robbery consisted. It needs no elaboration of discussion to sustain the statement that such an instruction is erroneous. 34 Cyc. 1810.

Judgment reversed.  