
    The State vs Smith.
    1. The indictment charges that the defendant did make an assault by then and there drawing a pistol and threatening to shoot him, (the said Herring,) within the distance the said pistol would carry: Held, that this charge was good, it not being necessary that the indictment should charge that the pistol was pointed at the party assaulted.
    2. If a person present a pistol at another, purporting to be loaded, so near as to have been dangerous to life, if the pistol being loaded, had gone off, this is an assault in law, though the pistol were notiu fact loaded,
    W. B. Johnson, attorney general of the 7th solicitorial district, presented, at the instance of Herring, prosecutor, a bill of indictment against Smith, to the grand jury of Montgomery county, at the September of the circuit court, 1840, for said county! This bill of indictment charges,
    1. That Sidney Smith, on the 10th day of September, 1840, in and upon one James Herring did. make an assault, by then and there drawing a pistol and threatening to shoot him the said Herring, within the distance the pistol would carry, &c.
    2. That Smith, on the 10th day of September, 1840, an assault did make upon the body of one James Herring, by then and there drawing a pistol from his pocket and threatening to shoot him the said Herring within the distance the said pistol would carry.
    The grand jury returned this a true bill. The defendant pleaded not guilty and was put upon his trial. He was found guilty by the jury. A motion was made in arrest of judgment and, Martin, presiding judge, arrested the judgment. Johnson, on behalf of the State, prayed and obtained an appeal.
    
      Attorney General, on behalf of the State,
    cited Amer. Jur. No. 51, page 153.
    
      Cook, for the defendant.
    The indictment for an assault with a gun must allege a presentation of the gun at the body, and that it was laden with powder and ball, in order to show an attempt to shoot, and a present ability of shooting. If not presented at the body it is no assault, and if not within the distance the gun will carry, or the gun is not laden, no present ability exists to commit the battery. Dav. Precedents, 60: Roscoe’s Criminal Evidence, 210: 3 Chitty Grim. Law, 826: 4 Wentworth, 7.
   Green, J.

delivered the opinion of the court.

The defendant in this case was indicted for an assault, convicted, and on motion the judgment was arrested. The district attorney on behalf of the State appealed to this court. The indictment charges, that the defendant “upon one James Herring in the peace of God and our said State, then and there being, did make an assault, by then and there drawing a pistol, and threatning to shoot him the said Herring, within the distance the pistol would carry. Two objections are taken to this indictment.

1st. It is said, that this indictment should have-charged, that the-pistol was pointed at the party assaulted. We do not think this statement necessary. The particular manner in which the weapon was held, with which a party made an assault, need not be stated. As if the indictment charge that the assault was made with a stick, it is never stated that it was raised in a striking manner, or if with a sword, that the point was presented, ready to thrust, nor need it state that a gun or pistol was presented, ready to shoot. If a party.draw a sword, in a threatening manner,In striking distance, that is an assault; so in this case, the drawing a pistol in a threatening manner, in shooting distance, is an assault.

2. It is insisted that the indictment should have charged, that the pistol was loaded with powder and lead, so that the party assaulted was put"'in actual danger. Lately it has been decided in England, in two cases, “If a person present a pistol, purporting to be loaded, at another, so near as to have been dangerous to life, if the pistol being loaded had gone off, this is an assault in law, though the pistol were not in fact loaded.” 9 Carr. & Payne, 483, 533: 20 English Common law Rep.: Amer. Jurist. No. 51, page 153.

In such case, all the injury occasioned by the terror which would be produced, or the breach of the peace that might ensue, would result that a loaded pistol would have produced. We therefore think the indictment in this case sufficiently charges the offence, and that the circuit court erred in arresting the judgment. Let the judgment be reversed.  