Opinion
June 15, 1956.
Appeal from the Circuit Court, Jefferson County, Frank Ropke, J.
Robert W. Zollinger, Louisville, for appellant.
Jo M. Ferguson, Atty. Gen., Zeb A. Stewart, Asst. Atty. Gen., for appellee.
This is an appeal by John Samuel Thomas, Jr., a juvenile offender, from his conviction in the Jefferson Circuit Court of the crime of robbery. His punishment was fixed at two years in the penitentiary.
Appellant was not indicted for robbery, but rather for forcibly demanding money from another person with intent to rob, which is one means of committing the crime of assault with intent to rob denounced by KRS 433.150. The punishment authorized under this statute ranges from twenty-one years in the penitentiary to life or death.
The punishment authorized by KRS 433.120 for robbery is two to ten years in the penitentiary. The jury was instructed that robbery was a lesser degree of the crime of assault with intent to rob, apparently because the punishment authorized for robbery is less severe. We have recently held, however, that robbery is not a degree of the crime of assault with intent to rob. Adams v. Commonwealth, Ky. 1954, 264 S.W.2d 283. Therefore, the conviction must be reversed.
We note from the record the procedure in transferring appellant, a juvenile, from the jurisdiction of the county court to the circuit court for indictment by the grand jury, was irregular. This will, no doubt, be corrected in the event appellant is prosecuted anew. KRS Chapter 208; Vanhoose v. Commonwealth, Ky., 264 S.W.2d 72.
The judgment is reversed.