Pursuant to an indictment James H. Southard was convicted of first degree murder with a recommendation of mercy by the Lucas Com,mon Pleas which conviction was affirmed by the Court of Appeals.

The indictment contained in part the following allegations:

- -' - - the grand jury do find - - - that James H. Southard---while attempting to perpetrate a robbery---did unlawfully and purposely kill and murder---Fred Wengert by shooting him 'with a pistol contrary to the form of the statute in such case made and provided---”.

Southard in the Supreme Court contends that the indictment was not sufficient for the following reasons:

1. Sufficient facts are not stated to show an attempt to commit a robbery.

2. The indictment is not framed with such certainty that a judgment may be pleaded in bar to any subsequent prosecution for the same offense.

3. The indictment does not state a positive charge against the accused and he is therefore uninformed fully concerning the crime with which he is charged.