Dissenting.—I d!o not approve the doctrine laid down by the supreme court of Montana in the case above cited. To hold, as in that case, that “the fact that the gun was unloaded (if such be the fact) is a matter of defense,” is to put upon the defendant the burden of proving his innocence, because it compels him to prove the nonexistence of one of the material elements of the offense, viz., the present ability to carry into effect the unlawful attempt to injure. As defined by our statute, assault “is an unlawful attempt coupled with a present ability to commit a violent injury upon the person of another.” To constitute the crime of assault, there must be the unlawful attempt to commit a violent injury upon the person of another, and with the making of such attempt there must be coexistent the ability to carry such attempt into execution; i. e., to commit the injury. Each is a necessary element of the crime, and both must concur. If either one is missing, the accusation fails. Each then is a necessary allegation of the indictment. Both must be alleged, and the existence of each must be established by competent evidence beyond a reasonable doubt. When the weapon used is a pis*144tol, to presume, or infer, or take for granted 'that the pistol is loaded is to presume the existence of one of the material elements Of the offense, and to assume the truth of a material allegation of the indictment; in other words, it presumes the guilt of the defendant, and compels him to prove his innocence by proving the nonexistence of one of the material elements of the offense, to wit, the ability to inflict the injury.
In the case at bar there is no evidence whatever to prove that the weapon in the manner in which it was used was capable of producing death or great bodily injury. There is no evidence whatever,-except the mere naked fact of the existence of the weapon, that at the time of the alleged assault the defendant possessed the ability to commit the violent injury essential to constitute the offense. The weapon may or may not have been loaded, and therefore the present ability essential to complete the commission of the crime may or may not • have existed, but this court is not warranted, and neither was the lower court nor the jury warranted, in presuming such ability to exist. To--do so is to presume the existence of one of the material elements of the offense, and therefore to presume the truth of a material allegation of the indictment.
Under the evidence submitted in this case, the jury would not have been warranted in finding a verdict of guilty, and the trial court was therefore justified in directing a verdict of acquittal.
NOTE.—The authorities on the question whether pointing an unloaded firearm constitutes an assault are reviewed in a note in 15 L. R. A., N. S., 1272.
As to what weapons may be considered deadly under law of homicide and assault, see note in 21 L. R. A., N. S., 497.
As to what constitutes a deadly weapon, see note in Ann. Cas. 1912A, 1328.
See State v. Miller, post, p. 440, 130 Pac. 891.
As to right of appeal by state in criminal actions on questions of law alone.—Reporter.