| Ill. | Nov 15, 1866
delivered the opinion of the Court:
The plaintiff in error was indicted for an assault with intent to kill. On the trial the jury found the following verdict:
“ We, the jury, find the defendant guilty of an assault with a deadly weapon, with an intent to inflict a bodily injury.”
On this verdict the court rendered a judgment, fining the defendant twenty-five dollars, and he has sued out a writ of error.
It is not denied, that, under the indictment for the greater offense, the jury could find the defendant guilty of the lesser, as decided by this court in the case of Prindeville v. The People, ante, p. 217, but it is urged that this verdict is an acquittal of the offense charged in the indictment, and that it fails to define that of which it intends to find the defendant guilty, inasmuch as it does not find the assault to have been committed either without considerable provocation, or where the circumstances showed an abandoned and malignant heart.
Whether this verdict was sufficient ground for the judgment of the court, imposing a fine, is a question not presented by this record. 35To exception was taken by the plaintiff in error to the action of the court, and there is no bill of exceptions in the record. There is, indeed, an entry by the clerk, showing a motion for a new trial was made and overruled, but this motion and the action of the court upon it should have been preserved in a bill of exceptions in order to be reviewed in this court. It is only in this mode that the court below can state the facts connected with the motion and with the action of the court in overruling it. In the case at bar, for example, the defendant, after making his motion for a new trial, may have stated to the com! that he would not press it. This would not appear by the entry of the clerk, but would appear if a bill of exceptions were taken. The practice has been uniform to require these motions to be preserved in this mode. This record, then, furnishes us no evidence, of which we can take notice, that a motion for a new trial was made. It only shows that the jury found a verdict which the court treated as sufficiently descriptive of the offense intended to be described, and pronounced sentence thereon, and that the defendant took no exception. If he had desired to preserve the question for examination in this court, he should have moved to set aside the verdict, and if the motion had been overruled, taken an exception to the ruling of the court. As it is, he must be considered as acquiescing. Smith v. Kahill, 17 Ill. 67" date_filed="1855-11-15" court="Ill." case_name="Smith v. Kahill">17 Ill. 67; Miller v. Dobson, 1 Gilm. 572; Boyle v. Leverings, 28 Ill. 317" date_filed="1862-04-15" court="Ill." case_name="Klemm v. Dewes">28 Ill. 317.
The judgment of the Circuit Court must be affirmed.
Judgment affirmed.