delivered the opinion of the court.

The indictment is for a capital felony. When the case was called for trial, the district attorney “abandoned the charge” and said he would try on the charge of “attempt” to commit that felony. But the proof is overwhelming that the crime was in fact perpetrated to absolute completion, if there was any offense committed at all, as the jury had full warrant to believe there was. Not having the power to repeal statutes or make laws, there was no right to try or convict of an attempt, under section 974, Annotated Code 1892.

Reversed and remanded.