The opinion
ON MOTION FOR REHEARING.
GRAVES, Judge.
Appellant complains in his motion because of our ruling in the original opinion relative to his bill of exceptions No. 1, in which error was alleged because of the fact that the trial court gave in charge to the jury not only the law defining robbery by assault but also included in said definition the penalty for a conviction of such robbery.
That it was necessary to define the offense of robbery, before the jury could understand the offense of an assault with intent to rob, should be apparent. But it is contended that because of the trial court giving in his charge the punishment for robbery, which could be a severe one under the law, such probably caused the jury to refuse appellant the benefit of a suspended sentence. It is noted by us that the trial court charged the full import of Art. 1408, P. C., in setting forth the offense of robbery. It is also noted that Art. 1163, P. C. says:
“If any person shall assault another with the intent to com
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mit the offense of robbery, he shall be confined in the penitentiary not less than two nor more than ten years.”
We think it to be evident from the above quotation that it would be necessary for the trial court to define the offense of robbery in his charge before he could reach the offense of an assault to rob in such charge.
We also note that appellant received the lowest penalty for such an assault, and we are not impressed with the reasoning that the inclusion of the punishment affixed to the offense of robbery in the court’s charge could have so impressed the jury that they failed to respond favorably to appellant’s request for a suspended sentence. From a reading hereof it is possible that the facts produced upon the trial may have conduced to the jury’s failure to award a suspended sentence.
We think this cause was properly decided in our original opinion, and the motion is therefore overruled.