It is urged that we misinterpreted the opinion of the Court of Appeals in this case, in that we supposed that court meant to declare the rule in a case in which the evidence would only support a finding of guilt of robbery or nothing. The brief on certiorari by the State argued the question as being controlled by that interpretation of the opinion. The brief on behalf of appellants argued that the evidence shown by the record was sufficient to support a finding of guilt of an offense less than robbery. We did not include that aspect of the brief in our discussion because it is not our province on certiorari to examine the evidence shown by the record to see if it supports the conclusion of the Court of Appeals on the effect of it. We did not understand that issue was taken on the contention of petitioner as to the interpretation of that opinion, as is now done.
When the opinion of the Court of Appeals declared that appellants were entitled to have the jury so instructed, if it meant that such was the correct result, because the evidence justifies that instruction, rather than that it was due though the evidence did not sustain such a finding, we did misunderstand it. *Page 7
But that there may be no misunderstanding as to the law which might result from the opinion as it now appears, we still think it should be remanded to that court for a statement as to whether the evidence justifies such a finding. And if it was meant to hold that there was such evidence, the opinion of that court was correct and the judgment of the circuit court was in that event properly reversed.
Also a more careful reading of the Robertson Case, supra, shows that it is not perhaps intended to be in conflict with the Reeves Case, supra, and others cited.
With that explanation the application for rehearing is overruled.
Application overruled.