This was an indictment for an assault with intent to kill and murder.
The appellant was, at the same time and place, indicted for an assault with intent to rob. The facts upon which the indictments were found are the same in each case, and constitute but on.e crime in fact. The assault was made upon one John II. Moore, commonly known as Jack Moore, *466and so described in the indictment. - By the statement of facts, it appears that appellant met Moore upon the highway,' on a Sunday morning, early in the month of October, 1867, and presented a pistol near Moore’s breast and demanded his money. Moore told him he had no money. Appellant told him to turn his pockets, which he did; showed no money, and the appellant rode off. Moore testified on the trial that accused did not threaten to shoot, or make any effort to do so, but only demanded his money. The -witness testified that he did not think the appellant intended to do anything but rob him. This is the only material evidence offered by the State. It is not even proven in what county the offense was committed. It appears from the record that there were two cases set for trial at the May term of the court for the year A. D. 1868, and numbered 1157 and 1158. Case 1157 was that wherein the appellant was indicted for an assault with intent to kill and murder. This cause was tried by a jury. The jury found appellant guilty, and fixed his punishment at three years’ confinement in the penitentiary; A motion was made for a new trial and overruled by the court.
And, now, the same jury that had tried case numbered 1157, were empanneled in 1158, and, by agreement, they determine this case upon the evidence offered in case Ho. 1157, and in their finding they acquit the appellant, saying that they had considered this indictment, or the “ charge to rob,” in a former case, wherein they had convicted the appellant of an assault ■with intent to kill.
We think it very questionable if they, at any time, knew which of the two cases they -were trying. The evidence would have supported a verdict of guilty under the indictment for an assault with intent to rob, but in this case the jury acquitted the appellant. The evidence will not warrant a conviction under the charge of an assault with intent to kill, in which case the jury convicted. And as the appellant, though no doubt guilty of a high crime, has been acquitted of the only charge which the evidence could make good against him, and *467convicted of a crime which the evidence did not establish, the judgment of the District Court is reversed and the case ordered to be dismissed.
Beversed and dismissed.