Clyde Lewis, Jr., the defendant-appellant herein, was indicted by the Grand Jury of Scioto County, tried and found guilty by a jury of unlawfully assaulting another with a dangerous weapon in violation of Section 2901.241, Revised Code. This statute reads as follows:
“No person shall assault another with a dangerous weapon or instrument or by other means or force likely to produce death or great bodily harm.”
From the judgment overruling the motion for a new trial the defendant has appealed on questions of law to this court.
*442The facts shown by the record are as follows: At about 4 A. M. on May 10,1961, in the Village of South Webster, Scioto County, Ohio, Mr. William Burnett saw an automobile stop between his house and the church next door. Three men got out of the car, took a satchel out of the trunk of the car and walked to the Simmering Grocery Store down the street. Approximately eight minutes later, one of them returned and drove the car behind the store. Mr. Burnett then had his wife call Mr. Floyd W. Hagan, a volunteer special deputy sheriff of Scioto County. Several dogs started barking and the three men got into the car and drove over into an area by the Davis Funeral Home nearby. They then got out of the car and came back through the alley toward the Simmering Store. Hagan drove up to the Burnett house, where Burnett pointed out the car and told him the men had crossed the street. Hagan pulled his car beside the parked car and instructed Burnett to call the sheriff. Prior to this, Hagan had observed a safe laying on the ground beyond the store. Hagan then opened the hood of the parked car and detached the ignition wires so it would be inoperable. Hagan was wearing his deputy sheriff’s uniform.
Defendant-appellant appeared out of the darkness with a pistol in his hand pointed at Hagan and said, “I will get you for tampering with my automobile. ’ ’ Defendant-appellant then said he had been seeing a woman whose husband was at work and he was in a hurry to get away. The other two men did not make an appearance and were thought by Hagan to be lurking nearby. Defendant-appellant ordered Hagan to raise the car hood and then he replaced the wires. He then got into the car and tried to start it without success. Hagan then told the defendant-appellant he was under arrest. Defendant-appellant ignored Hagan and got out of the car and tried again to fix the wiring.
Hagan then sat in the passenger side of the car with his feet out of the door hoping to detain the car. Defendant got back in the car and started it and drove down the road. When the car reached State Route 140, a short distance away, Hagan ordered the defendant to pull the car over to the side of the road. Defendant then pulled out a pistol and pointed it at Hagan — not more than eighteen inches away — and ordered him *443to get in and shut the door. Both Hagan and Burnett described the gun as a 38 caliber automatic, about nine inches in length. Defendant then ordered Hagan to get down on his knees in the car. Defendant noticed Burnett following them in the Hagan ear and stated to Hagan that if there was a two-way radio in his car and a roadblock was placed ahead of them, “You will be the first to die.” Defendant drove the automobile at a high rate of speed for about seven miles until he came to his brother-in-law’s home on the New Haven Road, which goes to Salter’s Creek. During all this ride defendant held the gun on Hagan. The brother-in-law, a Mr. McGuire, came out of his house and the defendant and Hagan got out of the car. During the conversation that followed, defendant pulled back his coat and said to Hagan, “Draw,” which Hagan refused to do. Thereafter, McGuire took the defendant away and Hagan went to call the sheriff’s office.
These facts were elicited through the testimony of Hagan and Burnett, as the only witnesses in the case. The defendant did not testify nor produce any evidence. The weapon used was not introduced in evidence and there was no evidence as to whether the pistol was loaded or unloaded.
As we view the record, the four assignments of error raise the single question, whether the burden was on the State to prove that the pistol used by the defendant in the commission of the alleged crime was loaded. The defendant contends that an unloaded gun is not a dangerous weapon; that in order for a gun to be so classified, it must be loaded with a destructive substance and capable of being fired; that these facts are essential elements of proof of the crime charged in the indictment and in the absence of such proof, the defendant was entitled to an acquittal.
The defendant relies upon the law pronounced in the case of Fastbinder v. State, 42 Ohio St., 384, which held:
“In order to convict of shooting with intent to kill, it must be averred and proved that the gun was loaded with powder and a bullet or some other destructive substance, which, when discharged from the gun is calculated to produce death.”
. That case was decided in 1884 by a divided court when technicalities, especially in criminal cases, were closely observed. Prior to 1929, when the present criminal code was adopted in *444Ohio, the common law practice was followed in criminal cases and indictments were long and complicated, describing in detail just how the alleged offense had been committed. In cases involving the use of guns, the indictment recited that the gnn was then and there loaded with powder and ball and held in the right hand of the offender, that the gun was pointed at the victim and discharged and that the ball entered a certain part of the victim’s body, then and there and thereby inflicting certain wounds, etc. The new criminal code simplified pleadings in criminal cases and, to some extent, the method of proof. By reason of the change in the statutory law, we do not feel bound by the decision in the Fastbinder case.
Section 2901.241, defining an assault with a dangerous weapon was enacted and became effective in Ohio on November 2, 1959. So far as we know, the term, “dangerous or deadly weapon” weapon has never been defined by an Ohio court, but has been the subject of litigation in many other jurisdictions. We quote from 4 American Jurisprudence, 145, section 34:
“The question most frequently arising on a prosecution for assault with a dangerous weapon is whether the weapon used comes within the meaning of a dangerous or deadly weapon. A dangerous or deadly weapon may be defined to be any instrument which will cause death or great bodily injury when used in the ordinary and usual manner contemplated by its design and construction. Some weapons under particular circumstances are so clearly lethal that it becomes the duty of the court to declare them to be such as a matter of law. Of this class of weapons are guns, revolvers, pistols, swords, and the like when used within striking distance of the victim; all others are lethal or not according to their capability of producing death or great bodily harm in the manner in which they are used.”
And the same authority, 4 American Jurisprudence, 176, section 90, reads:
‘ ‘ Generally it is a matter of defense to show that the weapon was unloaded, rather than a substantive part of the state’s case to aver and prove that it was loaded. In some jurisdictions a gun or pistol is presumed to be loaded in the absence of evidence that it was unloaded.”
See also 74 A. L. R., 1209.
In our opinion the trial court properly refused to.instruct *445tbe jury, as requested by tbe defendant, tbat it was necessary for the state to prove tbat tbe pistol used by tbe defendant was loaded; tbat when a gun is used under such circumstances as shown by the evidence in this case, tbe presumption is tbat tbe gun is loaded, in tbe absence of evidence tbat it is unloaded; tbat tbe burden of proving it was unloaded was upon tbe defendant. To bold otherwise would place an impossible burden on tbe state and render tbe statute nugatory when a gun is used as a means of accomplishing tbe assault. Also in tbe absence of any evidence by tbe defendant tbat tbe gun was ununloaded, the trial court was justified in instructing tbe jury on the effect of a loaded gun. Tbe evidence in this ease clearly establishes tbe defendant’s guilt and any errors in tbe instructions to tbe jury are errors of omission and not commission and did not prevent tbe defendant from having a fair trial. Tbe judgment of tbe Common Pleas Court must be and hereby is affirmed.
Judgment affirmed.
Radcliff, P. J., concurs. Brown, J., dissents.