DICE, Commissioner.
Appellant was convicted of the offense of theft from the person, upon his plea of guilty to an indictment charging the offense of robbery by assault, and his punishment assessed at confinement in the penitentiary for two years.
The state confesses error and concedes that the conviction for theft from the person cannot be sustained under the indictment for robbery by assault, since it is not an included offense.
The state's position is well taken, under the holding of this court in Van Arsdale