(No. 15355.

Reversed and remanded.)

#### The People of the State of Illinois, Defendant in Error, vs. Curtis B. Ellis, Plaintiff in Error.

Opinion filed June 20, 1923.

1. Criminal law — verdict must, in itself or by reference to indictment, contain every material element of the crime. The verdict must respond to the issues submitted to the jury, and must contain, either in itself or by reference to the indictment, every material element of the crime; and a verdict which finds the accused guilty of a certain part of an offense, only, amounts to an acquittal of the residue.

2. Same — when verdict does not sufficiently state crime of assault with a deadly weapon. The crime of assault with a deadly weapon, as defined by section 25 of division 1 of the Criminal Code, includes the element of intent to inflict a bodily injury under circumstances showing an abandoned and malignant heart, and a verdict which does not refer to the indictment, merely finding “the defendant guilty of an assault with a deadly weapon,” is not sufficient to sustain a sentence under section 25 and authorizes only a sentence for an assault.

3. Same — instructions cannot be made part of record without a bill of exceptions. Where there is no bill of exceptions, a certificate of the judge that certain instructions were given is without authority of law, and the instructions so certified to have been given cannot be considered as a part of the record in the disposition of the case on review.

Writ oe Error to the Circuit Court of Rock Island county; the Hon. Nels A. Larson, Judge, presiding.

Ben T. Reidy, and Edward W. SchoEdE, (H. A. Weld, of counsel,) for plaintiff in error.

Edward J. Brundage, Attorney General, Benjamin S. Bell, State’s Attorney, Virgil L. Blanding, and Edward L. Eagle, for the People.

Mr. Justice Dunn

delivered the opinion of the court:

Curtis B. Ellis was indicted in the circuit court of Rock Island county for murder and the jury returned the following verdict: “We, the jury, find the defendant guilty of *52an assault with a deadly weapon,” upon which the court sentenced him to be confined in the county jail for one year and to pay a fine of $1000 and costs. The defendant has sued out a writ of error, and contends that the court erred in sentencing him to imprisonment and to pay a fine in excess of $100, the maximum penalty for an assault.

The sentence imposed is that provided by section 25 of division 1 of the Criminal Code for an assault with a deadly weapon with an intent to inflict upon the person of another a bodily injury when no sufficient provocation appears or where the circumstances of the assault show an abandoned and malignant heart. The contention of the plaintiff in error is that he was not found guilty of that offense but only of an assault. A verdict of guilty of the crime defined by section 25 could not be returned unless the jury found all the facts which are necessary to establish the defendant’s guilt of that particular crime. The verdict must respond to the issues submitted to the jury, and must contain, either in itself or by reference to the indictment, every material element of the crime. (Donovan v. People, 215 Ill. 520; People v. Lemen, 231 id. 193.) A verdict which finds the accused guilty of a certain part of an offense only, amounts to an acquittal of the residue. (McKevitt v. People, 208 Ill. 460.) The verdict finds the defendant guilty of an assault with a deadly weapon. There is no statute imposing a penalty for an assault, which has any reference to the character of weapon with which the assault may have been committed, which does not require a finding upon the question of intent or the circumstances of the assault. Since the verdict makes no finding of such intent or circumstances, the words “with a deadly weapon” are surplusage, and the court erred in imposing a greater penalty than a fine of $100.

The Attorney General made a motion, which was allowed, to file a certified copy of the instructions given on the trial, and did file a certificate of the judge that certain *53instructions were given. There was no bill of exceptions and the certificate was made without authority of law. The instructions were no part of the record and cannot be considered in the disposition of the case.

The judgment will be reversed and the cause remanded.

Reversed and remanded.