Appellant was indicted in the low er court for the crime of robbery. On the trial the court instructed the-jury that if they did not believe the defendant was guilty of robbery, but did believe that he as guilty of an assault with intent to murder, they should find him guilty of assault with intent to murder, and assess his punishment accordingly. Under this instruction, the jury found defendant guilty of assault with intent to murder, and it is from a judgment rendered on that verdict, and convicting him of said offense, that this appeal is prosecuted.
We could, perhaps, imagine how an indictment, defective in charging robbery, though attempting to do so, might be good as an indictment for assault and battery. (Smedly v. The State, 30 Texas, 214.) But we can not see how a charge for robbery in the ordinary, form under our statute (Penal Code, Art. 722), would or could embrace a charge of assault with intent to murder. Robbery is not one of the crimes especially mentioned in the code as consisting of degrees (Code Crim. Proc., Art. 714), and should it be conceded that it is an offense susceptible of degree's, in so far as intent to rob and attempt to rob are concerned, still it cannot embrace assault with intent to murder where the specific intent, which is the gist of the offense, is not alleged—is essential to the description and essential to the proof of the crime. (Code Crim. Proc., Art. 423; Morris v. The State, 13 Texas Ct. App., 65.)
There is no'averment in the indictment before us that the as: sault was with intent to murder the injured party. The defendant was not put upon notice by the indictment that he would be held to answer a charge of assault with intent to murder, and under the indictment he could not legally be convicted of such offense.
Because the judgment of conviction is without warrant or authority of law, it is reversed and the cause remanded.
Reversed and remanded.