The act of Assembly under which this indictment was framed, under the first section provides that “ it shall be unlawful for any person, either in jest or otherwise, intentionally to point a gun, etc.” Unquestionably the object of this statute, is to cover, all cases in which a person points a gun or a pistol. Under one construction of the statute it may be a question as to whether the words “in jest or otherwise” are necessary averments, or are used merely as descriptive of the matter of pointing the gun, which is the gravamen of the offence in the meaning of the act, and against which the act provides. But taking the words as descriptive —it may not. be necessary in many cases in indictments to put in averments that are unnecessary, but there is a rule that where an averment is put in, even if it is not necessary, yet as the opposite party is entitled to notice of what he is expected to defend, it is necessary to prove it.
There is in each of the two counts in this indictment an averment that this party “ intentionally, in jest ” pointed this pistol.
Now that averment, having been put in by the State, the party is brought to trial here, charged with pointing a pistol in jest) and is put upon notice on his trial that he has to defend an indictment for pointing a pistol in jest; the Court think, under the circumstances, that it is necessary for the matter to be proved. There is no proof here going to show that this pistol was pointed in jest. The boy stated, according to the testimony, that he pointed the pistol at deceased, and he may be guilty so far as the Act of Assembly is concerned of pointing a pistol in jest, but we think it is necessary for the State to prove it.
The prisoner was thereupon discharged.