On February 12, 1902, the prosecuting attorney of Christian county filed in the .office of the clerk of the circuit court of said county an information against defendant in two counts.
The first count charges defendant with a felonious assault upon one Nancy Lewis with a deadly weapon, to-wit, a certain gun and with a certain pistol.
The second count charges an assault in and upon the body of said Nancy Lewis, with a deadly weapon, to-wit, a large stone, on purpose and with malice afore- • thought.
The defendant was found guilty and his punishment fixed at two years’ imprisonment in the penitentiary. After unavailing motion for a new trial, defendant appeals.
Over the objection and exception of,defendant the court in instruction 1 authorized the jury to find the defendant guilty if he unlawfully committed an assault upon Nancy M. Lewis, Troy Lewis or Roy Lewis, or any of them, while the information charges him with committing an assault upon Nancy M. Lewis only.
The second instruction is open to the same objection.
These instructions are admitted to be erroneous by the Attorney-General.
The judgment is reversed and the cause remanded.