Appeal by defendant from a judgment of the former *722County Court, Kings County, rendered June 21, 1960, after a jury trial, convicting him of attempted robbery and assault, both in the first degree, and imposing sentence upon him as a second felony offender. Judgment modified on the law by striking out the provision convicting defendant of assault in the first degree and the provision imposing sentence for such crime, and by substituting therefor a provision dismissing the sixth count of the indictment. As so modified, judgment affirmed. The facts are affirmed. The learned trial court erroneously charged the jury that they might find defendant guilty of assault in the first degree with intent to commit a felony. The sixth count of the indictment charged defendant with the crime of assault by aiming and discharging a loaded pistol at the complainant with intent to kill, and did not include any reference to an intent to commit a felony. By the court’s charge, the jury was therefore permitted to convict defendant of a crime for which he had not been indicted. Ughetta, Acting P. J., Kleinfeld, Hill, Rabin and Hopkins, JJ., concur.