
    The People of the State of New York, Respondent, v. Mary H. McKenzie, Appellant.
    
      Grimes—assault in the second degree—discharging a pistol loaded with hlank cartridges is not such, as matter of law—Penal Gode, § 218, suhd. 4.
    
    Whether a person who discharges a revolver loaded with blank cartridges at another, some seventy feet distant from her, comes within the definition, in subdivision 4 of section 218 of the Penal Code, of a person who willfully and wrongfully assaults another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm, and is guilty of an assault in the second degree, is a question of fact for the jury.
    It was the intention of the framers of the Penal Code that the words “likely to produce grievous bodily harm” should qualify the word “weapon” as well as the words “other instrument or thing,” and whether the weapon in question was likely to produce such harm is a question of fact which must be submitted to the jury.
    Appeal by the defendant, Mary H. McKenzie, from a judgment of the Court of Sessions of the county of Queens, rendered on the 18th day of March, 1895, upon the verdict of a jury convicting her of the crime of assault in the second degree.
    
      Amos H. Evans, for the appellant.
    
      Henry A. Monfort, for the respondent.
   Cullen, J.:

The appellant was indicted for and convicted of assault in the second degree, in discharging a loaded pistol at one Daniel K. Hall. When the defendant fired the pistol she was in her house and Hall was passing on the highway some seventy or eighty feet distant. The defendant testified that the pistol discharged by her (a revolver) was loaded with blank cartridges only. In submitting the case to the jury the court charged “ It is not necessary, in order to constitute this offense of assault in the second degree, that it should appear that the firearm used was loaded with powder and a leaden bullet. It is not necessary to show that any more than it was necessary to show that the pistol was discharged. The mere pointing of a pistol, which is an instrument or thing likely to produce grievous bodily harm, at the person of another, wilfully, and wrongfully, with intent to injure, constitutes the offense charged in the indictment, that of assault in the second, degree.” The defendant excepted to that part of the charge wherein it was stated that to constitute the offense charged it wras not necessary to show that the pistol was loaded with ball. The defendant then asked the court to charge the jury : “ That in order to convict the defendant of the charge of assault in the second degree, they must find from the evidence that the pistol in the hands of the defendant was loaded with bullet or some other substance likely to produce grievous bodily harm.” The court declined to so charge and the defendant ex'cepted.

The defendant further asked the court to charge: “ That as to whether the pistol in this condition of being loaded with a blank cartridge was liable to produce grievous bodily harm is one of fact alone for the jury to determine.” This was also refused and the defendant excepted.

We think the court erred in its conception of what was necessary to constitute assault in the second degree, and in its .refusal to charge as requested by the defendant. The law, so far as it is applicable to this case, is to be found in subdivision 4, section 218, Penal Code. A. person who willfully and wrongfully assaults another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm, * ‘ * * is guilty of an assault in the second degree.” We are entirely clear that the qualification “ likely to produce grievous bodily harm ” applies to the term weapon ” as well as to the ■terms other instrument or thing.” This is the natural reading of the section, and, we think, the plain intention of the Legislature. If this be so, it is also clear that to establish the offense defined by the statute it must be shown that the weapon with which the assault is made is likely to produce grievous bodily harm. The question whether the weapon is likely to produce grievous bodily harm is a question of fact. In some cases, as where a firearm loaded with a missile is used, or its use threatened in proximity to the person assailed, it very well may be that the court can take judicial notice of the dangerous character of the weapon and charge the jury that the fact exists. But where the weapon used is of such a character, or is used under such circumstances or in such maimer, that it may be fairly disputed whether it is likely to produce grievous bodily harm, the question of fact is for the jury. This seems to be the doctrine of the decided cases. (People v. Irving, 95 N. Y. 541; Nelson v. People, 23 id. 293 ; Abbott v. People, 86 id. 471.)

In the case at bar it was at most a question of fact for the jury, in case they believed the statement of the defendant that, the pistol was loaded only with blank cartridges, to determine whether it was likely to produce grievous bodily harm.

It is urged by the learned counsel for the People that to point a firearm menacingly against another is an assault, even though the firearm is not loaded, provided the party threatened has reason to believe that it is loaded, and that, hence, as the statute has made an assault with a weapon an assault in the second degree, the offense is committed whether the firearm is loaded with a missile or not. Whether the premise of this argument is correct or not is not entirely certain on the authorities. Wharton, in his American Criminal Law (4th ed., § 1244) states the legal principle to be : “ It is an assault to point a loaded pistol at any one, but not an assault to point a pistol at another which is proved not to be so loaded as to be able to be discharged.” This dictum seems to be approved in People v. Ryan (55 Hun, 214). In Hayes v. The People (1 Hill, 351) it is stated that to constitute an assault the “ act tending to such corporal injury, accompanied with such circumstances as denote at the time an intention, coupled with the present ability, •of using actual violence against the person.” On the other hand, it was held in Commonwealth v. White (110 Mass. 407) that pointing a gun, though unloaded, at another was an assault. So it is stated in 2 Bishop’s Criminal Law (7th ed., § 32): “If within shooting distance one menacingly points at another with a gun apparently loaded, yet not in fact, he commits an assault the same as if it were loaded.” We will assume, however, in accordance with what we believe to be the law, that the first proposition stated by the counsel is correct, still the conclusion he contends for does not follow. As we have already seen, to constitute. the offense it is not only necessary that there should be an assault with á weapon, but that the weapon should be likely to produce grievous bodily harm. Whether it is actually likely to produce such harm or not, may have no controlling effect on the question of a common assault, but it is of vital inquiry on the question of an assault in the second degree, because the statute makes it a necessary ingredient of that crime. In the case of a common assault the putting the party assailed in fear of, violence against his person may be sufficient, but in the statutory offense it is not the apparent character of the weapon or thing, but the actual character that constitutes the crime. While it may be that under certain circumstances, as when held closely to the eye or face, a pistol loaded with a blank cartridge might be likely to produce grievous bodily harm, it by no means follows that it would be likely to produce any serious result when discharged at a distance of seventy or eighty feet. It cannot, therefore, be affirmed, either as a matter of law, or as an unquestionable fact, that the weapon used by the defendant, if loaded as she states, came within the statute. The question should have been left to the jury:

The judgment should be reversed, and a new trial granted.

All concurred.

Judgment reversed, and new trial granted.  