#### The People of the State of Illinois, Defendant in Error, v. John Tynan, Plaintiff in Error.

Gen. No. 16,592.

Criminal law—verdict. Where an indictment charges assault with a deadly weapon, with intent to kill and murder, and assault to commit bodily injury with a deadly weapon, without considerable provocation, and under circumstances showing an abandoned and malignant heart, a verdict which merely finds defendant guilty of assault with a deadly weapon, with intent to do a bodily injury in manner and form as charged in the indictment, is fatally defective.

Appeal from the Criminal Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1910.

Reversed and remanded.

Opinion filed October 7, 1912.

Louis Greenberg, for plaintiff in error.

John E. W. Wayman, for defendant in error; Zach Hofheimer, of counsel.

Mr.. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff in error, hereinafter called the defend*558ant, was tried and convicted on an indictment containing three counts; one count charging an assault with a deadly weapon with an intent to kill and murder, and two counts charging an assault to commit bodily injury with a deadly weapon without any considerable provocation and under circumstances showing an abandoned and malignant heart. The jury returned the following verdict: “We the jury find the defendant John Tynan guilty of assault with a deadly weapon with intent to do a bodily injury in manner and form as charged in the indictment.” A motion for a new trial was denied and the defendant sentenced to the House of Correction for one year and to pay a fine of one thousand dollars.

The defendant urges that the judgment he reversed under the authority of The People v. Lemen, 231 Ill. 193, where a like verdict was held reversible error. We are of the opinion that the said authority is controlling on this court in the case at bar.

The judgment is reversed and the cause remanded.

Reversed cmd remanded.