dissenting. Under tbe evidence presented there were several Ohio Statutes tbat tbe defendant no doubt violated. Tbe question here is whether there was a lawful conviction of tbe defendant, whose actions patently display tbat be was no angel, under tbe statute tbe violation of which be was indicted, namely, Section 2901.241, Revised Code.
Section 2901.241, Revised Code, provides in part:
“No person shall assault another with a dangerous weapon or instrument or by other means or force likely to produce death or great bodily barm.”
Section 2901.241, Revised Code, differs from Section 2901.-24, Revised Code, relating to simple assault, in tbat it predicates a greater penalty attached to the use of a dangerous weapon upon tbe means employed in tbe intimidation.
While there is some conflict as to whether, in tbe case of an assault, there must be an actual present ability to commit a battery, tbe better view seems to be tbat an apparent ability is enough. See Restatement, Torts, Section 33 and Harper and *446James on Tort, 222. Since the right protected is that of the person attacked, the secret intention of the wrongdoer not to perform the threatened act or even his undisclosed inability to perform it, is not a legal excuse in a civil action. The criminal law is also designed to protect rights of the general public and the individual assailed, not merely to fix the moral guilt of the assailant. See Sayre, Criminal Attempts, 41, Harvard L. Rev., 821, 849.
The court’s general charge in so far as it relates to the elements of the crime is as follows:
‘ ‘ On the 10th day of May in the year of our Lord one thous- and nine hundred and sixty-one at the County of Scioto aforesaid did unlawfully assault another with a dangerous weapon, to-wit: Did threaten one Floyd W. Hagan with a gun. Contrary to Section 2901.241, Revised Code, and against the peace and dignity of the State of Ohio.”
‘ ‘ The law as to an assault charged in the indictment is this: An assault is an attempt to commit a battery. In this connection I might say that the pointing of a loaded firearm by one person at another when within range of the firearm by one person at another when within the range of the firearm, that is, within such distance that if discharged the bullet could take effect upon such other person, that would constitute an assault.”
“By the defendant’s plea of not guilty there is cast upon the State the burden of proving each and every material fact necessary to make out this charge or constituting the crimes or offenses as charged and set forth in the indictment to your satisfaction, beyond reasonable doubt, from the evidence in this case, that the defendant is guilty of some particular crime or offense charged against him in and by this indictment, before you are justified in finding any verdict against him, and this involves such proof beyond reasonable doubt of each and all of the facts and things set forth and stated in the indictment which enter into and form a necessary part and ingredient of such crime or offense substantially as the same are charged in the indictment.”
Section 2901.241, Revised Code was adopted by the legislature in 1950 to create the new offense of aggravated assault. It is apparent that they felt that the method of carrying out the assault was the most important new element added to create *447the new crime and therefore the gravamen of the offense. An assault carried out “with a dangerous weapon or instrument, or other means or force likely to produce death or great bodily harm ’ ’ was considered by the legislature to be of such a henious nature that it provided a felony penalty, whereas simple assault was still classified as a misdemeanor. See Section 2901.24, Eevised Code.
The question of what is a dangerous weapon within the meaning of this statute was left unanswered by the legislature. Its meaning has not been previously passed on by the Ohio courts.
In United States v. Williams, C. C. 2 F., 61, 64, the court states “Whether a particular weapon is a deadly or dangerous one is a question of law. Sometimes, owing to the equivocal character of the instrument — as a belaying pin- — or the manner and circumstance of its use the question becomes one of law and fact to be determined by the jury under the direction of the court. But where it is practicable for the court to declare a particular weapon dangerous or not, it is its duty to do so. A dangerous weapon is one likely to produce death or great bodily injury. A loaded pistol is not only a dangerous but a deadly weapon. The prime purpose of its construction and use is to endanger and destroy life. This is a fact of such general notoriety that the court may take notice of it. ’ ’
In numerous cases, although there is no precedent in Ohio, “A dangerous weapon” is one which as used or attempted to be used may endanger life or inflict great bodily harm. Price v. United States, 9 Cir., 1907, 156 F., 950, 952; United States v. Williams, D. C. D. Or., 1880, 2 F., 61, 64; Tatum v. United States, 1940, 71 App. D. C., 393, 110 F. (2d), 555; Medlin v. United States, D. C. Cir., 1953, 207 F. (2d), 33, certiorari denied, 347 U. S., 905, 74 S. Ct., 431, 98 L. Ed., 1064; see also Hopkins v. United States, 4 App. D. C., 430, 442.” Federal Supplement, 190.
Section 2945.11, Eevised Code, provides in part: “In charging the jury, the court must state to it all matters of law necessary for the information of the jury in giving its verdict.” The defendant in a criminal case is entitled to have the jury fairly instructed upon the law applicable to the evidence introduced, since he is entitled to a fair trial and can only have it in *448case of proper instructions. The charge should include a simple and orderly statement of the issues of fact and the rules of law applicable and which will be helpful to the jury in the determination of the several issues of fact upon which their verdict is to be based. The judge must accurately instruct the jury as to questions presented by the indictment and the evidence, and must correctly represent the substantive law. It is the duty of the trial judge to tell the jury all the essentials which constitute the crime charged, and which the jury must find or sustain by the evidence beyond a reasonable doubt. 15 Ohio Jurisprudence (2d), 734, and cases cited 'thereunder.
It is apparent from reading the charge of the court that the jury was not instructed as to what constituted the most important element of the crime, i. e., the means by which the alleged assault was carried out, as set forth in the indictment; namely, a dangerous weapon. It was the duty of the court to define this element to the jury. At the close of the charge the defendant made a seasonable request for instructions on this subject which was denied by the trial court. This, I believe, to be prejudicial to the defendant. The jury should not have been permitted to assume that the weapon described in the evidence was of dangerous character without proper instructions. In his instructions the judge talked of the pointing of a loaded firearm by one person at another under certain circumstances would constitute an assault, but no where was there any definition of what constituted a dangerous weapon. It 'must be stated that no where in the evidence is there any indication that the gun was either loaded or unloaded, even though it is almost beyond the realm of human comprehension that any rational being would carry on a course of conduct of such a nature as described above before a uniformed deputy sheriff without the same being fit for the use for which it was made.
It is my opinion that the judgment of the trial court should be reversed, the verdict set aside, and the case remanded to the Common Pleas Court of Scioto County for further proceedings according to law.