(dissenting.) The appellant was indicted under section 218 of the Penal Code for an assault in the first and second degrees. Upon the trial the charge as of the first degree was withdrawn. The prisoner was convicted of the crime of an assault in the second degree, and duly sentenced. The act by which it was held the crime was committed was in pointing a loaded pistol at the complainant, who was within shooting distance, accompanied by the threat, “I will shoot you now.” He had, within a short time before, struck the complainant on the breast, without altercation or provocation, and his conduct was therefore willful and wanton. The indictment charged the act, and that it was done with intent to shoot off and discharge the pistol. The statute does not require such a charge. The fourth subdivision is as follows: “Willfully and wrongfully assaults another by the use of a weapon or other instrument or thing likely to produce grievous bodily harm,”—and makes the act, therefore, without reference to the intent with which it is done, a crime. Unless the legislature intended that such act, however dangerous and however productive of terror, was not punishable, no other interpretation can be given the language employed; and this would be in accordance with an elementary principle, well stated in 2 Bish. Grim. Law. (7th Ed.) § 32 as follows: “There is no need for the party assailed to be in actual peril, if only a well-founded apprehension is created, for bis suffering is the same-in one case as in the other, and the breach of the public peace is the same. Therefore, if within shooting distance one menacingly points at another with a gun, apparently loaded, yet not loaded in fact, he commits an assault the same as if it were loaded.” It is quite a familiar rule that an assault is any attempt or offer, with force or violence, to do corporal hurt to another, whether from malice or wantonness, as by striking at him with a cane, or holding up the fist at him in a threatening or insulting manner, or with such other circumstances as denote at the time an intention, coupled with a present ability, of actual violence against his person, as by pointing a weapon at him when he is within reach of it, (Rose. Grim. Ev. 210;) and the distinction between the assault which is in fact only a menace and the commission of the act of which it may be said to be the precursor, are settled by the difference in the punishment meted out for each offense. If the indictment had set out the assault alone, there would, therefore, belittle doubt about the propriety of the conviction appealed from; but it did not. It went further, and charged the ap*223pellanfc with pointing the pistol, intending to shoot it off and discharge it against the body of the complainant. Both of these phases of the question were presented by the charge of the learned justice presiding. " He said, after a more elaborate statement of the offense charged: “Briefly, a person who assaults another with a weapon or a thing likely to produce grievous bodily harm is guilty of assault in the second degree, if the assault be willful and wrongful. So, if you shall And from the evidence in this case that this de-. fendant did point this revolver at the complainant, and that act was a willful and wrongful act, then I charge you that the crime that has been committed was the crime of assault in the second degree,”—and thus omitted the element of intent, which was in harmony with statute, but less than the indictment required; that paper, as we have seen, charging a felonious intent. But the learned justice qualified that instruction by these observations: “Your duty is first to consider, upon retiring to your jury-room, whether this defendant is guilty of the crime of assault in the second degree; whether he willfully, wrongfully assaulted another by the use of a weapon or other instru-ment or thing likely to produce grievous bodily harm. It was not necessary that he should have fired that weapon, to constitute the crime. If he pointed it with the intent to inflict an injury upon the complainant, that is assault in the second degree; if he had a willful and wrongful intent at the time of so doing,—if his intent was to commit an assault. If the defendant at that time had a willful and wrongful intent, and if that is shown, he is guilty of the crime of assault in the second degree,”—in which intent to inflict an injury was said to be essential, which is an error, although consistent with the elements of the crime as charged in the indictment.
The statute designs to punisli for pointing a dangerous weapon willfully and wrongfully, because it is likely to produce a grievous bodily harm. If it be a pistol, it might be discharged; and, if not, it might produce a sense of peril which would not be mitigated by the unknown fact that it was not loaded or cocked, or could not be discharged for any reason. The presentation in a threatening manner constitutes the assault which is contemplated by the statute and made an offense. When, however, there is added the further element of intention to shoot, it is not to be inferred from the mere pointing of the pistol at another. There must be something more than this,—such as that the trigger was pulled, or the pistol was cocked, or that it was sell-cocking, and the prisoner’s finger was on the trigger. Such is the rule of the cases bearing upon the subject, and they are consistent with common sense when a distinction is made between an assault with intent to inflict bodily harm and one without such intent. It is in the latter case, as already suggested, that the assault is a crime, for the reason that it is likely to produce the result stated. Such is the language of the statute. Under the Revised Statutes, (2 Rev. St. p. 665, § 36,) on an indictment for attempting to discharge a pistol with intent to kill, it was held that the pointing of an uncooked Colt’s revolver at a person was not an attempt to discharge the weapon. Mulligan v. People, 5 Parker Crim. R. 105; and see Reg. v. Lewis, 9. Car. & P. 523; Reg. v. St. George, Id. 483. There is no evidence in this case of any act other than the pointing of the pistol, and that is not suflieient to justify a finding that it was done with intent to shoot it off, although accompanied by a threat. It was a willful and wanton act, as already said, and a crime, but it was not the offense charged in the indictment and submitted to the consideration of the jury. The point is well taken, therefore, that the verdict rests upon no ■evidence to sustain it on the element of intent, there being no proof that the pistol was cocked, or that any attempt was made to cock it, or any act done preparatory to its discharge. Por these reasons the judgment should be reversed, and a new trial ordered.