
    Fastbinder v. The State.
    1. In order to convict of shooting at with intent to kill, it must be averred and proved that the gun was loaded with powder and a bullet or some other destructive substance, which, when discharged from the gun, is calculated to produce death.
    2. The fact that the gun was so loaded may be proved by either direct or • circumstantial evidence.
    8. ’Where, during an angry and violent altercation between the prisoner and the prosecuting witness, the former threatened to shoot the latter, and immediately thereafter procured a gun and discharged it at the latter, it is error for the court to charge the jury, that from this threat alone, they might infer that the gun was loaded.
    Ekeoe to tbe court of Common Pleas of Columbiana county.
    Plaintiff in error was convicted and sentenced under an indictment charging him that with a certain gun, loaded with powder and leaden balls, he shot at one Hiram Lamborn with intent to kill.
    The evidence tended to show that a violent and angry altercation was in progress between said Hiram and the plaintiff in error, during which the plaintiff in error threatened to shoot said Hiram, and immediately thereafter procured a gun and shot it off near to and at the person of said Hiram.
    Some evidence was given that the shot left powder marks on his face, but there was no evidence either positive or circumstantial that the gun was loaded with a leaden ball or other deadly missile, unless the previous threat to shoot said Lam-born raised a presumption that the gun was so loaded.
    
      At the conclusion.of the evidence, counsel for plaintiff in error requested the following charge, to wit:
    “If the evidence given in the case has not satisfied you beyond a reasonable doubt that the gun that the defendant is charged to have shot off at the time, and in the manner charged in the indictment, was not loaded with powder and leaden balls, then your verdict should be for the defendant; that is, that he is not guilty of shooting with intent to kill or wound the said Hiram Lamborn.”
    Which charge the court refused to give save as given in the charge below, to which refusal the defendant, by his counsel, at the time excepted; but the court did give on said point the following charge, to wit:
    
      “ Gentlemen: Before you can find the defendant guilty 'of shooting with intent to kill as charged in the first count of the indictment, or of shooting with intent to wound as charged in the second count of the indictment, you must find from the evidence in the case, and beyond a reasonable doubt, that the gun spoken of in the indictment, with which said Jackson Fastbinder is charged in the indictment with having unlawfully, maliciously and purposely shot at Hiram Lamborn, was then loaded with powder and leaden balls; and unless the proof shows this beyond a reasonable doubt, you must find the defendant not guilty on either of said counts. But that you may so find that said gun was so loaded with powder and leaden balls, it is not necessary that this should be proven by positive evidence. It will be enough to establish this point if all the circumstances of the case should satisfy you beyond a reasonable doubt that said gun was so loaded with powder and leaden balls. If you find from the evidence that said Jackson Fastbinder then said that he would shoot said Hiram Lamborn, and got the gun and did shoot it off at him, you have a right to take him at his own word and to infer and find that he had the means to carry out his threat, and that said gun was at that time loaded with powder and leaden balls, if you see proper.”
    To which charge, as given, the plaintiff in error excepted.
    
      The motion for a new trial was overruled and the plaintiff was sentenced to the penitentiary upon the verdict.
    Error is now prosecuted to reverse this judgment.
    
      J. W. Morrison, for plaintiff in error :
    1. The charge of the court in reference to Fastbinder saying that he would shoot Lamborn, was wrong.' Innocence is presumed. 1 Greenleaf on Ev. (13th Ed) § 13 a; Fuller v. State, 12 Ohio St. 433; Roscoe’s Or. Ev. (7th Ed.) 15.
    2. It should have been averred and proven that the gun was loaded with powder and leaden ball. Roscoe’s Grim. Ev. (7th Ed.) 15 ; 2 Bishop on Grim. Pro. (2d Ed.) 359, § 652 note 2.
    
      James Lawrence, Attorney General, and Ii. W. Taylor, prosecuting attorney, for defendant in error:
    I. When a gun is discharged, with all the outward indications of a deadly intent, the presumption is that it is loaded in the manner necessary to accomplish the usual and natural purpose of such a weapon. The burden of showing the contrary is on him who thus uses it.
    This rule implies no hardship and imposes no burden upon the defendant which he cannot easily remove. To negative it, imposes a burden upon the state which is unjust and unfair, and makes theffailure of the death-intending marksman to hit his mark, a sure and safe refuge against the claim that he has committed a felony. '
    II. This verdict can be sustained even though no proof was made that the gun was loaded with powder and ball. It is clear that it was loaded with powder and wadding. Rex v. Kitchen, Russell & Ryan’s Or. Oas. 75; Henry v. State, 18 Ohio,. 32.
   Johnson, C. J.

We need not notice the refusal to charge as requested, for the reason that ihe charge as given is a statement of the same proposition, with an additional instruction to be noticed.

The charge as given, after stating that it was the duty of the state to make out beyond reasonable doubt that the gun was loaded with powder and leaden balls, and that unless the proof showed this fact they must find the defendant not guilty, then added But that you may so find the gun was so loaded with powder and leaden balls it is not necessary that it should be proven by positive evidence; it will be enough to establish this point if all the circumstances of the case should satisfy you beyond a reasonable doubt that said gun was so loaded with powder and leaden balls.

“ If you find from the evidence that said Jackson Fastbinder then said he would shoot said Hiram Lamborn, and got the gun and did shoot it off at him, you have a right to take him at his own word, and to infer and find that he had the means to carry out this threat and that said gun was at the time loaded with powder and leaden balls, if you see proper.”

To the last clause of this charge objection is made.

That it is objectionable is clear to the minds of a majority of this court.

After correctly stating that it was the duty of the jury to find the gun was so loaded and that this might be done upon positive or circumstantial evidence, they are told that they might convict, if they saw proper, by inferring from the previous threat, made to shoot, that the gun was so loaded. In other words, they might be satisfied beyond a reasonable doubt that the gun was loaded with a leaden ball because Ihe plaintiff in error threatened to shoot Hiram Lamborn and immediately thereafter got the gun and shot it off at him.

We do not think this threat to shoot, followed by shooting the gun off, is sufficient, to satisfy the jury, beyond reasonable doubt, that the gun was loaded with a bullet or other deadly missile; and it seems to us that to draw such an inference from a mere threat in the heat of an augry and violent altercation, in which each was trying to overdo the other, is unwarranted. Indeed, the very violence of this altercation and the close proximity of the parties at the time of the shooting and the failure to make the threat to shoot him effective, though there was ample opportunity, if he had intended to kill him, would lead to tlie equally'reasonable inference, that it was an idle threat rather than a serious one.

Be this as it may, and while this threat may be properly regarded as a circumstance tending to show an intention to take life, yet it is insufficient to satisfy the jury beyond a reasonable doubt of this material allegation.

It is not a circumstance from which the jury could necessarily infer that the gun was loaded.

The legal presumption of innocence can be overcome only by full proof as will exclude all reasonable doubt of the guilt of the accused, and where a criminal charge is to be proved by circumstantial evidence the proof ought to be not only consistent with the prisoner’s guilt, but inconsistent with any other rational conclusion.

From the circumstances developed in the evidence, it would not be irrational to infer that the threat and the shooting were intended to frighten away from his premises those who were making an attack upon him. Under such circumstances we think it the duty of the state to have shown to the satisfaction of the jury that the charge in the indictment as to the manner in which the gun was loaded must be established either by positive or circumstantial evidence, otherwise the defendant should be acquitted, 2 Bishop’s Criminal Procedure, § 652, note 2; 1 Archbald Cr. Pl. & Ev. 885, 887, note 890, and notes; Weston’s case, 1 Leach, 247.

Judgment reversed.

McIlvaiNE, J., dissented.  