¶1The testimony of Arthur Boykin tended to prove that the defendant did not take anything from the person of Jesse Frank, the alleged victim of the robbery charged. But the testimony of this witness, as well as other testimony in the case, had a tendency to prove that the shooting of Frank by the defendant was a result of or accompanied with an intent on the part of the latter forcibly to take from the former’s person money just previously won by him in a crap game in which the two had been engaged. In other words, there was evidence tending to prove that the defendant assaulted Frank with intent to rob him, but did not consummate the intended robbery or in any way participate in a robbery or theft, which there was evidence tending to prove was subsequently committed by Claude Moorer. The charge of robbery includes the charges of an assault and battery and of an assault with intent to rob. — Rambo v. State, 134 Ala. 71, 32 South. 650; Code, §§ 6311, 7315. As there was evidence tending to prove that the *155defendant was guilty of an assault and battery or of an assault with intent to commit tbe robbery charged, charges 1, 2, 3, and 4 were properly refused.
¶2The indictment in this case charged the commission of an offense which may be punished capitally. — Code, § 7746.. The judgment of conviction cannot be supported, as the record fails to show affirmatively a compliance with the requirements of the. statute as to the jury for the trial of a person indicted for a capital felony. — Kinnebrew v. State, 132 Ala. 8, 31 South. 567; Burton v. State, 115 Ala. 1, 22 South. 585; Jachson v. State, 171 Ala. 38, 55 South. 118; Acts of Ala. 1909, 305, 318.
¶3Reversed and remanded.