
    Williams v. State.
    (Division B.
    May 10, 1937.)
    [174 So. 47.
    No. 32646.]
    Harry K. Murray, of Vicksburg, for appellant.
    
      W. D. Conn, Jr., Assistant Attorney-General, for the State.
   Griffith, J.,

delivered the opinion of the court.

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, 89 Miss. 21, 42 So. 542, that where a crime is actually committed, prosecution for an attempt is not proper. It is not competent under this statute to1 indict for an attempted offense and then stand upon proof of a completed offense. Compare Holley v. State, 175 Miss. 347, 166 So. 924.

.Reversed and remanded.  