
    HIXON v. THE STATE.
    (S. C., Thomp. Cas., 50-51.)
    Knoxville,
    September Term, 1850.
    1. CRIMINAL PLEADING. Indictment for assault wit]} a gun, with intent to kill.
    An indictment for assault with intent to kill, charging- the assault to have been committed by presenting a gun, is sufficient to sustain a verdict of guilty of a simple assault on motion to arrest the judgment; but to- sustain a conviction of the felonious assault the indictment should have averred that the assault was made within the distance the gun would carry.
    2. SAME. Same. Conviction of simple assault.
    Under an indictment charging assault with intent to kill, the defendant may be convicted of a simple assault. [Code, sec. 7196.]
    ■Tbe plaintiff in error was indicted and tried in tbe county of Knox on a charge of an assault with intent to kill. Tbe bill of indictment charged tbe assault to- have been committed by presenting a gun, but did not charge that it was done within shooting distance.
    The- jury found the plaintiff in error not guilty of the felonious intent, but guilty of an assault.
    The counsel for the defendant in the circuit court moved to arrest the judgment, on the ground that the. indictment did not charge that the gun. presented by the defendant was presented within shooting distance; but the court refused to do so, whereupon the defendant appealed in error to the supreme court.
    1. Assault sufficiently charged in indictment.
    The eharg-e in an indictment for assault may be sufficient without specifically setting forth the particular acts constituting the assault, which is matter of evidence. Bloomer v. State, 3 Sneed, 66. The charg-e for assault with a g-un or pistol need not state that it was pointed at the party assaulted, nor that it was loaded. State v. Smith, 2 Hum., 457.
    2. Assault, what is.
    What is an assault, and evidence of intent. Rich els v. State, 1 Sneed, 606. There may be an assault, without actual force. Smith v. State, 7 Hum., 43.
   McKinney, J.:

Though it might have been necessary to have averred in the indictment in question that the assault was made within the distance the gun would carry had the defendant been convicted of the felonious assault; yet it was not necessary that the same should have charged that fact when the defendant was found guilty merely of an assault, and the fact appeared in evidence at any time during the trial.

Judgment affirmed.  