
    Hubbard Robinson v. The State.
    An indictment for assault with intent to kill with a certain gun which defendant attempted to shoot ought to state that the gun was loaded. (Paschal’s Dig., Arts. 2137-2144.)
    Appeal from Yan Zandt. The case was tried before Hon. John J. Good, one of the district judges.
    
      The facts are sufficiently set forth in the opinion of the court.
    
      F. M. Says, L. W. Clark, and 8. P. Donley, for appellant.
    Ho brief for the state has been furnished to the Reporter.
    
   Caldwell, J.

—Indictment charges that the defendant made “an assault with a certain gun, the same being then and there, a deadly weapon, and him the said William did attempt, with the gun aforesaid, to shoot, with intent,” &c.

After exceptions to the sufficiency of the indictment were overruled, the district attorney entered a nolle prosequi as to the felony, and they proceeded to trial for the assault. The defendant was found guilty of simple assault, from which he appeals.

We are of opinion that the exceptions ought to have been sustained.

The indictment ought to aver that the gun was charged, or otherwise show that the defendant had a present ability to inflict an injury.

Reversed and dismissed.  