*243 By the Court.
Benning, J.delivering the opinion.
Ought the Court below to have given the requests in charge to the jury.
If the evidence proved there was no assault, the requests were merely irrelevant. And we think that the evidence did prove that there was no assault
This was the evidence :
1st. The testimony of Paden, the foreman of the grand jury, to the effect, that the prosecutor, on his examination before the grand jury, swore that the accused “held the pistol in his hand, but did not present it.”
2d.- The testimony of Sanders, who swore, that when he and the prosecutor got “within twenty-five or thirty steps of” the accused, “who was standing in the edge of his yard, and in the path they were coming down,” the accused “raised the pistol, throwing the barrel into his left hand, and the pistol was pointed up the path in the direction of” him, the witness, and the defendant, “and said, John, stop, and get out of my inclosure, if you come another step, I will blow a day-light hole through you.”
Does the act thus sworn to, amount to the presenting• of a pistol? A pistol, or other gun, is not presented at an object until it comes to be held as it would be held, if the holder of it was going to fire it at the object.' Now a pistol, with its butt in the right hand, and its barrel thrown across into the left, is not held as it would be held, if the holder of it were going to fire it at an object; and this even although the pistol may happen to be pointing at the object. A pistol thus held, is no more held as it would be, if the holder were going to fire it at an object, than is a pistol thrown over the shoulder, with the muzzle to the rear, held as it would be held, if the holder were going to fire it at an object. It can make- no difference in either case, that the pistol may happen to be pointing at the object. To constitute the act of present*244ing, intention must enter into the act. And in such case, intention does not enter into the act.
The evidence shows then, that there was not any presenting of the pistol; and if there was not any presenting of the pistol, it follows that there could have been no assault.
If .there was no assault there was nothing to authorize the requests, and they were irrelevant. They went on the assumption that there was an assault.
[1.] We think, therefore, that the Court did not err in refusing to give them in charge to the jury.
This disposes of the requests to charge.
And what thus disposes of the requests to charge, must equally dispose of all the charges except one.
If the case, made by the evidence, was a case in which there was no assault, it was a case in which the defendant, the party alleging an assault, was not entitled to have any charge whatever given as tp what might or might not constitute an assault. If the case proved was this, it was plainly one in which the whole defence had failed. And can any charge whatever given about a defence, be said to be “against” the defendant, when the whole defence has failed in the proof? Suppose no proof at all is offered in support of the defence, does the Court do anything that operates “against” the defendant, if it tells the jury that such or such things would constitute a defence, but that such or such other things would not constitute a defence ? Surely not.
Still more must this be true, if evidence is introduced, and it actually disproves the defence. And in the present case evidence was introduced, and it did disprove the defence.
The charges, all except one, amounted to this, that certain facts, if they existed, would constitute a defence, provided certain other facts did not also exist.
The case, as proved, was one in which there was no assault, and therefore, was one in which there could exist no facts that would constitute a defence.
The charge, therefore, confined as it was to what was *245or was not a defence, could not possibly be “against” the defendant.
[2.] Without expressing any opinion then, as to whether the charges would or would not have been good, if they had been called for by the case proved, we say, that as they were not called for by the case proved, we‘do not consider them to have been “ against” the defendant, in the sense of the word against as used in the new trial Act of 1854; and consequently, that we do not consider them to be such that, on this account, that act requires a new-trial to be granted.
The excepted charge isas follows: “That the finding of no bill by the grand jury of DeKalb, with the lapse of a reasonable time, and no attempt to prefer another bill of indictment, would be sufficient to show, prima facie, that the case in which the arrest was made had ended, although a recognizance for plaintiff’s appearance to answer the charge might be still outstanding, and no order of Court had ever been granted for his discharge.
[3.] We think that this charge was right
Suppose the accused had been discharged from the recognizance ; yet such a discharge would not have been a bar to a new bill of indictment; that is to say the discharge from the recognizance would have been no better evidence that the suit had terminated, than was the mere return of “ no bill” by the grand jury. At at any rate, that return was sufficient prima facie, Pain vs. Porter, Cro. Jac. 490; Morgan vs. Hughes; 2, T. R, 225; Vol. 2, Pt. 1, Saund. Plead. and Ev. 325; See 2. Green. Ev. Sec. 451.
The plaintiff, in the suit below, wished to prove that the prosecution had not been renewed. And the Court permitted him to examine the Solicitor General, to show that he had no knowledge of any renewal of the prosecution. We cannot say, that we think this permission to have been wrong.
What the plaintiff had to prove was a negative, and it is impossible that a negative, i. e. a non-existence, can be record*246ed. If so, it is not a thing of which any record can be direct evidence, much less can be the highest evidence.
[4.] We cannot say, therefore, that we think that there could have been offered any evidence of a better or higher species than that of the Solicitor General, which was offered.
Was the verdict decidedly and strongly against the weight of the evidence ? We think not.
And this makes an end of all the questions in the case. The result is, that we think the judgment of the Court below ought to be affirmed.
Judgment affirmed