¶1The indictment charged only that the appellant did “with malice aforethought in and upon Emil Kroll make an assault, with the intent then and there to murder the said Emil Kroll.” Under such charge, the trial court submitted to the jury assault with intent to murder with and without malice, and aggravated assault.
¶2The jury returned the following verdict, which was received by the trial court, viz:
“We, the jury, find the defendant, Vance Tyson, guilty of Murder with malice aforethought and assess his punishment at 2 years confinement in the penitentiary.”
¶3Upon such verdict, judgment was entered finding appellant guilty of assault with intent to murder, and decreeing that he be punished by confinement in the State penitentiary for a term of two years,' Sentence was duly passed in keeping with *463such judgment; from which notice of appeal was given.
¶4That the verdict of the jury found appellant guilty of an offense not charged in the indictment is evident. Such a verdict was, therefore, a nullity, and could not support the judgment and sentence entered. Tarkenton v. State, 135 S. W. (2d) 716; 138 Tex. Cr. R 292; Moore v. State, 206 S. W. 683, 84 Tex. Cr. R 256; Grant v. State, 127 S. W. 173, 59 Tex. Cr. R 123.
¶5The State, in its brief, very forcefully argues that the verdict shows that the jury intended to find appellant guilty of the offense as submitted to them, and that such intent should be given effect by construing.the verdict as a whole. To this contention we cannot agree, for to do so would, in this case, have the effect of substitution by the courts of a verdict different from that which the jury found and returned into court.
¶6For the want of a valid verdict, the judgment is reversed and the cause remanded.
¶7The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.