Opinion on Petition to Rehear
Plaintiffs in error have filed a petition to rehear. Under T.C.A. sec. 40-3409, we are bound, as suggested in the petition, to consider any errors in the record, whether there has been an assignment or not.
In this case, however, the bill of exceptions does not contain a complete transcript of testimony, but instead concerns itself only with the charge to the jury. Therefore,- in the absence of the complete record, we must presume that the facts presented on trial fully substantiated the verdict of the jury. Norris v. Richards, 45 Tenn. App. 100, 320 S.W.2d 730 (1958); McAmis v. Carlisle, 42 Tenn. App. 195, 300 S.W.2d 59 (1956); Findlay v. Monroe, 196 Tenn. 690, 270 S.W.2d 325 (1954).
The only new matter presented in this petition is the contention that plaintiffs in error were denied “due process” and “equal protection of the law” under the Fourteenth Amendment of the United States Constitution in that the indictment did not properly inform the plaintiffs in error of the assault and battery charge. The argument is that since the question of whether assault and battery is a lesser included offense of robbery is a case of first impression in Tennessee, the defendants had no notice that they could be convicted of assault and battery under a robbery indictment.
*230On appeal the plaintiffs in error argued that assault and battery was not a lesser included crime of robbery, and that an indictment for robbery did not fairly inform them of the charge of assault and battery. Our opinion states that assault and battery is a lesser included offense of robbery, and implicit therein is our opinion that the plaintiffs in error were fairly informed of all charges for which they might be convicted. It is not necessary to repeat the words of the original opinion.
"We would not have held assault and battery to be a lesser included offense of robbery had we not believed the plaintiffs in error were fairly informed of the possibility of assault and battery conviction by the indictment for robbery.
Our opinion called attention to the language of the indictment, as follows:
* * * did * * * feloniously and by force and by violence and by putting’ the said [victim] in fear, rob, steal
We think beyond doubt that this language fairly informed the plaintiffs in error of the possibility of conviction for assault and battery as well as robbery, and their conviction of assault and battery was not, therefore, in violation of' the Fourteenth Amendment as claimed. ''
The petition to rehear is accordingly denied.
Burnett, Chief Justice, Dyer and Holmes, Justices, and Clement, Special Justice, concur.