Mallon

The appellant Mallon was charged, jointly with one Foran, with assault with intent to commit robbery upon the person of one John Tieck, and was Convicted as charged. He appeals from the judgment, and from an order denying his motion for a new trial.

Only two points are urged for a reversal: 1. That the court erred in admitting certain testimony of Crock *514 ett and Donovan, witnesses for the prosecution; and 2. That the court erred in giving a certain instruction, which, it is contended, assumed that an assault had been committed.

It is doubtful if the record shows any sufficient objection to that part of the testimony of Crockett and Donovan which is claimed to be inadmissible, but assuming that it does, we do not think that there was error in admitting said testimony. These witnesses were allowed to testify, among other things, to certain statements made by the said Foran (who had pleaded guilty) in the presence of appellant; and it is this part of their testimony that is claimed by appellant to have been improperly admitted. This testimony, standing by itself and without any connection with the conduct of appellant when the alleged statements were made, would, no doubt, have…