¶1delivered the opinion of’the court.
¶2The defendant was indicted, with two others, for a felonious assault. The only exception saved during the trial was to the instructions given by the court. No brief is *22filed for the appellant, and, so far as we can discover, the-instructions are without fault. The indictment contained several counts, all of which were abandoned by the State-except the two first. Of these the first was for assault, with intent to kill, under section 29, p. 449, Wagner’s Statutes ; and the second was for wounding, disfiguring, etc. * under section 33, p. 450. The punishment prescribed for the first of these offenses is exclusively imprisonment in the-penitentiary for not exceeding ten years. For the second, it may be assessed at fine and imprisonment in the county jail. The court, in its instructions, clearly set the law to-•this effect before the jury. The verdict was in the following words:
“ We, the jury in the above case, find the defendant guilty of an assault to kill, as charged in said indictment, and assess his punishment at a fine of one hundred dollars and. one year’s imprisonment in the county jail.”
¶3This was clearly a conviction on the first count in the-, indictment, and an acquittal on the second. Yet the jury assessed a punishment which was not admissible for the-offense charged in the first count, and could only attach to-the crime of which the defendant was acquitted. This is. error manifest on the face of the record.
¶4The statute provides a corrective for such cases, to be applied by the trial court. As this was not done, the judgment must be reversed and the cause remanded for proper proceedings in the court below.