The defendant was convicted.under the second count contained in the indictment, the first having -been withdrawn from the consideration of the jury. This court alleged an assault feloniously, willfully, and wrongfully made by him by a pistol then and there loaded with gunpowder and a leaden bullet, which was in the right hand of the defendant, and pointed and presented at the complaining witness, with intent to shoot off arid discharge the same. The weapon was alleged, also, to be an instrument likely to produce grievous bodily harm. This count in the indictment appears to have been framed under subdivision 4, § 218, Pen. Code, declaring a person to be guilty of an assault in the second degree who “ willfully and wrongfully assaults another by the use of a weapon or other instrument or thing likely to produce grievous bodily harm.” The intent charged in the *221indictment against the prisoner, to shoot off and discharge the weapon, ha? not been required to create the offense described in this division of the section; but evidence was given on the trial from which such an intent could be inferred, for the complaining witness testified that when the defendant pointed the pistol, which was proven to have been loaded, at him, he stated that lie would shoot the witness, who then jumped behind a partition in the back room. From this statement an intent to shoot could be inferred under the decision which was made in Mulligan v. People, 5 Parker, Crim. R. 105. On the charge which was given to the jury, their verdict of guilty of the offense in this manner alleged was made to depend upon the existence of this intent, as well as upon the additional fact that the weapon was an instrument likely to produce, as it was pointed, grievous bodily harm. Ro injury accordingly resulted to the defendant by the allegation and proof of this additional attribute to those required to convict him of the crime for which he was found guilty. It, on the contrary, imposed an additional burden upon the prosecution beyond that required by the statute, and if, in the judgment of the jury, the evidence had failed to establish the existence of this intent, then the defendant would, from the charge of the court, have been acquitted. They considered the intent to have been proved, and, as the evidence left no doubt concerning the other circumstances necessary to constitute the crime, they found the defendant guilty, and that they very well could do, of this crime of an assault in the second degree. The indictment charged, and the proof tended to establish, more than the law required to make out the offense.
It is supposed that the case of Mulligan v. People, supra, supports the right of the defendant to a reversal of this judgment because of this additional allegation and proof. But such is not its effect. The indictment in that case was found under a statute making it a felony to shoot at another, or attempt to discharge any kind of fire-arms or any air-gun at another, with the intent to kill, maim, etc., such other person. 3 Rev. St. (6th Ed.) p. 938, § 46. The weapon in that case was an uncooked pistol, and the court was asked to charge that pointing this weapon at the person was not an attempt to commit the crime mentioned in this section of the statute. The intent there was essential to the commission of the crime described in the statute. It could not be committed without the existence of the intention, and, as that was not proved by reason of the circumstance that the pistol was uncooked, the court held that the jury should have been so directed. On this case the intent was not made by the law an attribute of the crime, but still it was alleged to exist, and the evidence was sufficient to sustain the jury in finding that the intent did in fact exist, for it did not appear that the pistol was uncooked, but it was pointed by the defendant at the complaining witness, accompanied with the threat that he would shoot him then, and from this circumstance, accompanied with the threat, the jury could infer that the pistol was in a condition at the time to be discharged. In Reg. v. Lewis, 9 Car. & P. 523, the indictment was found under a statute making it an offense to attempt to discharge a fire-arm at another. The evidence proved that the defendant, at the termination of an interview between himself and the complainant, unfolded a coat on his arm, and took out a blunderbuss, saying, “You are a dead man.” This was not pointed at the witness, and not up to the defendant’s shoulder, when he was seized by his two arms and bis collar, and thrown down upon a sofa, and then secured. The witness added: “The blunderbuss was never-pointed towards me,” and that materially distinguishes that case from the present one. The court held at the trial that this was not sufficient to bring the case within the statute, and the defendant was acquitted. In Reg. v. St. George, Id. 483, the defendant presented a loaded pistol at the complaining witness, but was prevented from pulling the trigger, and it was held at the trial that he could not be convicted on an indictment for feloniously attempting to discharge loaded arms at the witness. As to the case first cited *222from this report,there seems to have been fair ground for the acquittal of the defendant, but, as to the case last referred to, it certainly does not seem to have been' well decided; for pointing a loaded pistol at a person, which he was prevented from discharging by the intervention of another, would be an attempt to discharge it at the person to whom it was pointed, and that was considered to be the rational conclusion in Queen v. Brown, L. R. 10 Q. B. Div. 381, when the correctness of the decision in Reg. v. St. George, and also in the Case of Lewis, was so far doubted and criticised as substantially to deprive the earlier case, at least, of its authority. But, even if they were not in effect overruled at that time, the decisions contained nothing whatever which would exonerate this defendant from guilt under this subdivision of the statute, for he did all that the subdivision has prescribed to create the offense, and he did it also with the intention alleged in the indictment, forming no necessary part of the crime.
The prosecution did more than it was legally obliged to do to secure the conviction of the defendant. He was not injured, but was benefited, by this excess, and he.is not entitled to complain of it, under the enactment contained in section 542 of the Code of Criminal Procedure. The judgment should be affirmed.
Van Brunt, P. J., concurs.