The first ruling prayed for raised, in effect, a question of variance.
In criminal proceedings generally, if an offence, which is sufficiently set forth in the complaint, is made out by the proofs, it will warrant a conviction of that offence, although of less gravity or degree than the whole charge. Matters of aggravation are not essential to a conviction ; neither are averments as to the mode of *409commission, or the implement used; and allegations of such incidents need not be strictly proved, unless they are descriptive and therefore necessary to the identification of the act charged as an offence. Commonwealth v. Burke, 14 Gray, 100. The first ruling asked for was rightly refused: 1. because there was some evidence in support of each of the allegations that the defendant “ pointed and aimed ” the gun at Harrington, and threatened to shoot with the gun; 2. because the instructions given included all that was necessary to constitute the offence ; and whatever more was alleged in the complaint was not descriptive nor essential for any reason. Acts, as well as words, may constitute and prove a threat.
The instructions required the jury to find that the acts of the defendant were done “ menacingly; ” that Harrington had reasonable cause to believe the gun pointed at him was loaded, and was actually put in fear of immediate bodily injury therefrom; and that the circumstances were such as ordinarily to induce such fear in the mind of a reasonable man.
Instructions in accordance with the second ruling prayed for would have required the jury also to find that the defendant had an intention to do some bodily harm, and the present ability to carry his intention into execution. Taking both these conditions literally, it is difficult to see how an assault could be committed without a battery resulting.
It is not the secret intent of the assaulting party, nor the undisclosed fact of his ability or inability to commit a battery, that is material; but what his conduct and the attending circumstances denote at the time to the party assaulted. If to him they indi cote an attack, he is justified in resorting to defensive action. The same rule applies to the proof necessary to sustain a criminal complaint for an assault. It is the outward demonstration that constitutes the mischief which is punished as a breach of the peace.
The authorities cited for the Commonwealth amply support the rulings and instructions to the jury at the trial.
Exceptions overruled.