#### The People of the State of Illinois, Defendant in Error, v. Charles Bosickavich, Plaintiff in Error.

Gen. No. 20,010.

(Not to he reported in full.)

Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.

Affirmed.

Opinion filed July 14, 1914.

*463Abstract of the Decision.

1. Assault and battery, § 34 * —when verdict warrants judgment for mere assault. On information charging a defendant with an assault with a dangerous weapon, without any considerable provocation and under circumstances showing an abandoned and malignant heart, with an intent to inflict bodily injury, a verdict finding the defendant guil.ty of an “assault with a deadly weapon” held in effect to be a verdict for mere assault and to authorize the court to reject as surplusage the words “with a deadly weapon” and render judgment on the verdict for such ottense.

2. Assault and battery, § 34*—when jury may convict of lesser offense of mere assault. On the trial of an information charging an assault with a dangerous weapon, without any considerable *464provocation and under circumstances showing an abandoned and malignant heart, with intent to inflict bodily injury, the jury may acquit of the offense charged in the information and convict of the offense of mere assault even though there is no count specifically charging the lesser offense.

*463Statement of the Case.

Information filed by the People of the State of Illinois charging Charles Bosickavich with an assault with a dangerous weapon, without any considerable provocation and under circumstances showing an abandoned and malignant heart, with intent to inflict bodily injury. The verdict found defendant guilty of an “assault with a deadly weapon” and judgment was pronounced upon the verdict and a fine of one hundred dollars and the costs of the suit imposed. To reverse the judgment, defendant prosecutes a writ of error.

Plaintiff in error urges as ground for reversal that the verdict is insufficient to support the judgment in that it does not respond to the issue submitted to the jury.

Louis Kahn, for plaintiff in error.

Maclay Hoyne and Francis E. Hinckley, for defendant in error.

*

See Illinois Notes Digest, Vols 51 to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Barnes

delivered the opinion of the court.