This is a conviction for robbery. The charging part of the indictment is as follows: “Mathew Kim*422ble, late of said county, on the fifth day» of July in the year of our Lord eighteen hundred, eighty-one, with force and arms in the county aforesaid, did then and there wilfully, unlawfully, fraudulently and feloniously, in and upon the person of Clayton McLelland make an assault, and him the said McLelland put in fear of bodily injury, and while so in fear of bodily injury from him, the said Kimble, the said Kimble did then and there unlawfully, fraudulently and feloniously, and against the will of the said McLelland, induce the said McLelland, by reason of said putting in fear, to deliver to him the said Kimble fifty cents,” etc.

Article 722 of the Penal Code defines robbery as follows: “If any person, by assault, or by violence and putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use, he shall be punished by confinement in the penitentiary not less than two nor more than ten years.”

It will be seen from this definition of robbery, that the taking of the property, to constitute robbery, must either be by assault or by violence and putting in fear of life or bodily injury. If by assault, violence and putting in fear may be omitted; and if by violence and putting in fear, the assault may be omitted. If, however, the indictment should charge (as does this) the assault and putting in fear of bodily injury, omitting the violence, it would be good, treating “ putting in fear ” as surplusage. But the assault is abandoned in this bill; because it alleges positively and affirmatively that McLelland was induced to deliver the money “by reason of said putting in fear.” If, therefore, the State relied upon this ground, which is evidently the case, the indictment is not sufficient, for the plain reason that a necessary ingredient is omitted, to wit, violence.

When both grounds are relied upon, the indictment should charge that the defendant, by assault, and by vio*423lence and putting in fear of life and bodily injury, did, etc. Under this form of allegation, if either means by which the robbery was committed be proved, the conviction would' be legal, because the charge covers both phases.

But, proceeding upon the hypothesis that the assault is not abandoned, this conviction cannot be sustained, the evidence failing, beyond question, to show any assault whatever. The State, because of thus being forced to rely upon the other ground, to wit, “putting iii fear of bodily injury,” must, to support a conviction on this ground, charge all of its elements. This is accomplished by alleging that the defendant .by violence and putting in fear of bodily injury, took the money, etc.

We are of the opinion that the indictment is insufficient, and that the exceptions of the defendant should have been sustained. We are also of the opinion that if the indictment is sufficient by reason of the assault which is charged, still, there being no evidence of an assault, the verdict upon this phase of the indictment is not supported.

The judgment is reversed and the prosecution dismissed.

Reversed and dismissed.