Hollohan v. State

Maulsby, J., delivered the opinion of the Court. The indictment in this case is under Article 30, section 10 of the Code, which is: “ Every person convicted of the crime of an assault with an intent to rob, murder, or commit a rape, ⁴⁰⁰ shall be sentenced to confinement in the penitentiary for not less than two years nor more than ten years.” The indictment charges that the traverser, on, &e., at, &c., “ in and upon one A. T. Sheriff, in the peace of God and the said State, then and there being, unlawfully did make an assault” “ with the intent the moneys; goods and chattels of the said A. T. Sheriff, from the person and against the will of the said A. T. Sheriff; then and there feloniously to rob,” &c. The traverser, by his counsel, moved to quash the indictment, “ because it alleges and charges that the act committed was feloniously done, or done with a felonious intent, which act is not a felony.” The indictment does not charge that the act was feloniously done, and the question is, whether the allegation that it was done with intent feloniously to rob, vitiates it. Robbery, murder and rape are felonies.

To constitute either of these crimes, the felonious act and felonious intent must concur. An assault with intent to commit either of these crimes, is hot a felony, but to bring an assault within this Article and section, and subject the party charged to the punishment provided, it must be charged and proved to have been committed with an intent to. commit a crime, which is a felony. If the intent had been effectuated by the act, a felony would have been committed. Only because it was not effectuated, the crime sinks from the grade of a felony to that of misdemeanor.

The assault, with intent to rob, is the act charged by the indictment. “ It is a material ingredient to charge the