with many others, have fully established the modern doctrine that, even in those peculiar crimes where a specific intent constitutes the gist of the offense charged, a conviction will be sustained for any other offense, not charged in terms, the commission of which is necessarily included in the commission of the offense charged. Beckwith v. People, 26 Ill. 500. In the case at bar, how- ever, the established rule now voiced by § 7429, Comp. Laws, by reason of an insufficient verdict, cannot be applied to the extent of affirming a conviction for felony for the offense defined by $6510, Id. The verdict does not find the defendant guilty of the offense charged in the information, and fails to find him guilty of any other felony. ‘Assault and battery with intent to do bodily harm" is not felony at common law, nor under any statute of this state. An essential clement of the felony defined by § 6510 is lacking in the verdict. An armed assault is not found, and the omission is fatal to the sentence. The verdict will sustain a sentence for assault and battery, which offense is both charged and found. This view has direct and ample support in the adjudications of other states, under statutes essentially the same as in this state. People y. Vanard, 6 Cal. 562; Sullivan y. State, 44 Wis. 595; Territory v. Conrad, (Dak.) 46 N. W. Rep. 605; O'Leary v. People, 4 Parker, Crim. R. 187.
We are of the opinion that the words "as charged in the information,” which are embraced in the verdict in this case, when considered with reference to the fact that the defendant is not found guilty of the offense charged in the information, are ambiguous, and too indefinite to sustain the sentence. If the inference may properly be drawn from the: general language of verdict above quoted, that the accused was armed with a dangerous weapon when he committed the assault and battery of which the jury found him guilty, the same rule of construction would, we think, require the court to infer that an armed assault and battery was committed if the verdict had been as follows: “We, the jury, find the defendant guilty of an intent to do bodily harm, as charged in the information;” but to thus speculate, and “give
