¶1Abraham L. Moore, plaintiff in error, was indicted, tried and convicted in the Warren Circuit Court, and judgment was rendered against him for a fine of §50 and costs. The indictment upon which he was tried, charged that he, “ with a certain deadly weapon, to wit, a whip, which he, the said Abraham L. Moore, then and there held in his hand and hands, unlawfully, wilfully and maliciously did make an assault upon one P. R. Parrish, with intent then and there unlawfully and wilfully to inflict upon the person of said P. R. Pan'ish a bodily injury, no considerable provocation for said assault then and there appearing.” The jury returned a verdict finding him “ guilty of an assault and battery on the person of P. R. Parrish,” and the judgment of the court was entered upon such verdict.
¶2The rule of law is, that where a defendant is put upon his trial for a crime which included an offense of an inferior degree, the jury may acquit of the higher offense charged, and convict of the lesser, although there may be no count in the indictment specifically charging that particular offense; but no conviction can be had for an offense which includes some ingredient which is not necessarily included in the charge set forth in the indictment. Carpenter v. The People, 4 Scam. 197; Beckwith v. The People, 26 Ill. 500; Young v. The People, 6 Ill. App. 434. In this case, the indictment was for an assault with a deadly weapon with intent to do a bodily injury, and no actual bodily injury or battery was charged therein; and the verdict found the defendant guilty of the offense of an assault and battery, and the judgment of the court was for the commission of that offense. An assault and assault and battery are separate and distinct offenses under our statute. See Secs. 20 and 21 of-the Criminal Code. An assault with a deadly weapon with an intent to inflict a bodily, injury may be committed either with or without an actual battery; and, as we have seen, no battery is alleged in the present indictment. It follows from what has been said that the indictment did not necessarily include in its pterins the offense of which plaintiff in error was convicted.
¶3There was no necessity in this case that either a motion for a new trial or motion in arrest of judgment should have been made in the court below, and preserved in a bill of exceptions. The error here is patent and manifest upon the face of the record proper, as certified by the circuit clerk. The indictment which was returned by the grand jury does not support the verdict of the petit jury and the judgment of the court. The case is not different, in legal principle, from what it would have been, had the petit jury in this trial upon an indictment for an assault with a deadly weapon returned into court a verdict finding plaintiff in error guilty of larceny, and the court had rendered judgment thereon. Where an indictment or declaration is wholly insufficient to sustain the judgment which is rendered by the court, such ground of objection may be availed of on writ of error, notwithstanding no motion in arrest of judgment was interposed in the lower court. The judgment is reversed and the cause remanded.
¶4Reversed and remanded.