
    SHOEMAKE et al. v. STATE.
    (No. 6316.)
    (Court of Criminal Appeals of Texas.
    June 8, 1921.)
    Robbery 17 (7) — Indictment must allege property was taken by means of assault.
    An indictment charging that defendants “did then and there unlawfully in and upon A. make an assault, and then and there by said -, fraudulently and against the will of the said A., take from the person,” etc., was insufficient to charge robbery, since it omitted the allegation that defendants took the property by means of an assault.
    Appeal from District Court, Brazoria County; M. S. Munson, Judge.
    Arthur Shoemake and- another were convicted of robbery, and appeal.
    Reversed, and cause dismissed.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   DATTIMORE, J.

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. 
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