
    TARVER vs. THE STATE.
    [indictment fob assault with intent To mubdee. ]
    1. Assault with intent to murder, vndiclment for ; what State, for purpose of showing maliee, may prove on trial of — On the trial of a party, for am assault with the intent to murder, the State, for the purpose of showing malice, may prove the fact of a previous difficulty between the accused an d the party charged to have been assaulted ; but the circumstances of said previous difficulty should not be proved by the State.
    2. Assault with pistol; what necessary lo constitute. — To constitute an assault with a pistol, it is necessary that the pistol should be presented at the person charged to have been assaulted, within the distance to which the pistol may do execution.
    3. Same; proper charge to jury in such case, what is. — In such a case, a charge, that “if the jury believe, from the evidence, that the accused did not present his pistol at the party charged to have been assaulted, they must find him not guilty,” is a proper charge, and if refused when asked, it will be an error, for which the judgment will be reversed.
    Appeal from the Circuit Court of Barbour.
    Tried before tbe Hon. J, McCaleb Wiley.
    At tbe spring term, of tbe circuit court of Barbour county, in the year 1869, tbe appellant was indicted and convicted of an assault with intent to murder one William Russell, and fined four hundred and fifty dollars.
    It appeared, in evidence on the trial, that tbe assault charged, if committed at all, was for presenting and attempting to shoot said Russell with a pistol, in tbe town of Clayton, in said county, in tbe fall of 1867.
    Tbe evidence was conflicting, whether tbe pistol was, or not, in fact, presented.
    Tbe said Russell was tbe only witness who stated that tbe pistol was presented.
    Other witnesses, who were present, and said they saw tbe whole difficulty, stated that tbe pistol was not presented. Tbe whole evidence, taken together, seemed to leave this matter in doubt.
    Tbe State offered to prove, by said Russell, tbe circumstances óf a previous difficulty which had taken place between the accused and said witness, about a month before the alleged assault, for which he was on trial, for the purpose, as was stated, of proving express malice. The accused did not object to the proving of the fact that a former difficulty had taken place, or that an old grudge existed between the witness and himself, or that threats had been made by him, against said witness ; but he objected to the admission of proof, of the circumstances of the said former difficulty.
    The court overruled his objection. The witness was examined as to the circumstances of said former difficulty, and the accused excepted.
    After. the evidence was closed, the accused asked the court to charge the jury, that if they believed from the evidence, that the accused did not, at any time, present his pistol at said William M. Bussell, then they must acquit him, which charge the court refused to give, and the accused excepted. Other charges were asked and refused, and charges were given to the jury by the court, and excepted to, that are not necessary to be here stated.
    The ruling of the court on the trial, and the charges given and refused, are here assigned for errors.
    Pugh & Baker, for appellant.
    E. M. Wood, contra.
    
    [No briefs came into the hands of the reporter.]
   PECK, C. J.,

(after stating facts as above.) — It was competent for the State to prove the fact of the previous difficulty, although not necessary, for the purposes stated in this case ; that is, to prove malice on the part of the accused, as an$[ old grudge and threats were admitted by him. But the State should not have been permitted to prove the circumstances of the former difficulty. '

The circumstances of said former difficulty consisted not only of what was said and done by the accused, but also of what was said and done, on the occasion, by the witness.

What the witness, said and did, should not be permitted to injui’e the accused on this trial.

It might, and probably would, have misled and prejudiced the jury against the accused. For these reasons, this evidence should not have been permitted to go to the jury. The court should have excluded it from them.

An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.

To constitute an assault with a gun or pistol, it is necessary that the gun or pistol should be presented at the party charged to be assaulted, within the distance to which the gun or pistol may do execution.

Roscoe on Criminal Evidence, top page 286, says: There must be an actual presenting of the gun or pistol, to make out the assault.

Therefore, in this case, if there was, in fact, no actual presenting of the pistol at the witness, there was, legally, no assault, no offense, and, consequently, should be no conviction.

The charge asked should have been given by the court, and in refusing to give it, the court fell into an error.

The court also erred in admitting evidence of the circumstances of the previous difficulty, and in refusing to charge the jury, that if they believed, from the evidence, that the accused did not present the pistol at the said William M. Russell, they should acquit him. Let the judgment of the court below be reversed, and the cause remanded for a new trial.  