
    Caldwell v. The State.
    Where, after fche trial had commenced, it was discovered that the indictment was not indorsed “filed,” the court ordered the clerk to make the indorsement, which was done: Held, There was no error.
    Where one person presents a gun at another in a hostile manner within shooting distance, the presumption is that it was loaded; and if it was not loaded, it devolves upon the defendant to prove it, and that he knew it at the time. (Note 3.)
    Appeal from Collin. The appellant was convicted of an assault with intent to murder, by presenting a loaded gun, &c. After the trial had commenced, it was discovered that the indictment had not been indorsed “filed.” The court ordered the clerk to make the indorsement, winch was done, and the defendant excepted. The defendant asked the coiu-t to charge the jury that it devolved upon the State to prove that the gun was loaded. But the court refused to do so, and charged that if the defendant presented his gun at the prosecutor within shooting distance in a hostile manner, the presump■tion was that the gun was loaded, and that it devolved upon the plaintiff to prove the contrary, and that he knew it at the time.
    Cravens, for appellant.
    I. The indictment, as is shown by reference to the record and bill of exceptions, was not filed until after the commencement of the trial. Upon objection being made the court ordered the indictment to be filed by the clerk and the trial to proceed, to which exception was taken. The statute contemplates and the rules of court require the clerk to file each paper at the time it is received, .and will not allow the court to notice any paper that is not thus identified with the record. The Supreme Court of Tennessee, under a statute requiring the name of the prosecutor to be indorsed upon the indictment, decided, in tiie absence of such an indorsement, that the judgment must be arrested. (10 Yerg. K., 239.) The reason for arresting the progress of this cause upon the discovery of such a defect is still stronger. The paper was not a record in the ■court, and tiie fact that a similar bill had been formerly returned by the graud .jury could not prove that the one upon which the conviction in this ease was had was the same one; nor could the court know whether it was so or whether it was for an assault committed upon an entirely different person.
    II. If t-lie gun was presented at Helms by the defendant, does the presumption arise that the gun was loaded, and would the defendant be compelled to prove two negatives, to wit, that the gun was not loaded, and that he knew that it was not loaded? In tiie absence of the gun being loaded having been •proved, either presumptively or positively, there could have been no assault, because there was an absence of a present ability to do any bodily harm, what■ever might have been the intention; but if it was not loaded, the presumption would be that it was drawn for the purpose of intimidation, and not to do ..any bodily harm. (1 Rus. Crimes, 719, 720, 724, 750, and 754; 2 'Greenl. Ev., •sec. 82, note 5; Rose. Crim. Ev., 728; East P. 0., 412; 1 Phil. Ev., 207.)
    Hamilton, for appellee.
   Lipscomb, J.

The appellant was indicted for an assault with intent to commit murder. There was a conviction and a judgment, from which he appealed.

The counsel for tiie appellant has assigned several grounds on which he supposes the judgment ought to be reversed. One of them, however, only will be considered, as being the only one that could be seriously made with any hope of success. It is in relation to the charge of the court below ou a rule of evidence.

The court charged the jury that if the defendant presented his gun at the prosecutor withiii shooting distance, the presumption of law was that the gun was loaded, and that if it was not, it devolved on the accused to prove it, and ■that he knew it was not loaded when he so presented it.

In the charge so given it is not believed that there is any error. Where one man, with manifestations of ill-will or under the influence of unfriendly feelings, presents his gun at another, that the gun is loaded is a presumption resulting from tvell-established principles of law. If the accused fails to rebut the presumption by proving that it was not loaded, and that he knew the fact at the time, this presumption will stand as proof; because, if it was not loaded, .and he knew it, the proof was, from the circumstances of the case, in his power, and it would not be easy for the defendant to prove the fact of its being loaded. The fact of the ill-feeling, too, under which he acted created a presumption that it was in no idle or playful tnood that he presented the gun, but that it was with an evil intent so presented as au instrument in a condition to execute the threatened mischief. Perhaps the prosecutor could not, in one. case •out of a hundred, prove positively tiie fact that the gun was loaded; when, if it was not, it was easy for the accused to remove the presumption and show that it was not, and that he ltnew it was not, by proclaiming the fact and inviting an examination. This he could and ought to have done by way of exculpating himself if really innocent. His not doing so, authorized the jury to believe that it was loaded.

Note 8. — Crow v. The State, 41T., 468.

Judgment affirmed.  