Page:North Dakota Reports (vol. 2).pdf/537

 ERROR to district court, Cass county; Hon. William B. McConnell, Judge.

M. A. Hildreth, for plaintiff in error. L.A. Rose, State's Atty., and C. A. M. Spencer, Atty. Gen., for the State.

Prosecution againt Edward Fallon for an alleged assault with intent to commit robbery. Verdict of guilty, and judgment thereon. Defendant brings error. Reversed.

The opinion of the court was delivered by

Bartholomew, J. Edward Fallon, the plaintiff in error, was informed against, with one Howard, charging them with the crime of making an assault with a dangerous weapon, to-wit, a pistol, with intent to commit a felony, and the circumstances of the offense were charged in the following language: “That at said time and place, the said defendants, in and upon one Charley Curfman,-did then and there unlawfully, feloniously, and with premeditated malice make an assault, and then and there, at and against him, the said Charley Curfman, did unlawfully and feloniously, and with premeditated malice, shoot a certain pistol, then and there loaded with gunpowder and a leaden ball, with the intent then and there upon and against him, the said Charley Curfman, to commit the crime of robbery.” Sections 6481, 6482, Comp. Laws, read as follows: “Robbery is a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. To constitute robbery, the force or fear must be employed either to obtain or to retain possession of the property or to prevent or overcome resistence to the taking. If employed merely as a means of escape, it does not constitute robbery.” The state may fairly claim that the evidence establishes the following facts: The assault occurred between 8 and 9 o’clock on the evening of October 29, 1891, in the bright rays of an electric light, very near the west end of what is known as the “ North Bridge” across the Red river, in the city of Fargo. Curfman, the party assaulted, had started to go east across the bridge. Before reaching the bridge he passed the plaintiff in error, who