(dissenting).— In my view, the indictment in this case charges no more than a simple assault; and I think the proof is of a simple assault only. Our statute does not define an assault, and this court, in common with some other courts, has declared, in effect, that any offensive and unauthorized physical demonstration made by one against the person of another will constitute an assault, if, coupled with the demonstration, there is an apparent ability to effectuate a battery, or the circumstances are such as to fairly induce a belief in .the mind of the party against whom the demonstration is made that the ability to effectuate a battery *464is presently existing. Accordingly it has been held that, where one within shooting distance points an unloaded pistol at the person of another, there is an assault, if the party pointed at does not know that the pistol is unloaded. State v. Shepard, 10 Iowa, 126. The terrifying effect of the act is the same in the one case as in the other; and hence to each the same consequence is attached. In all such cases it is to be observed that the matter of prime importance is the condition of mind produced or likely to be produced in the party assaulted. But, respecting the charge of an aggravated assault — as one committed with intent to kill, or to do great bodily injury — something more than the effect upon the mind of the person assaulted is to be considered. In such case, the intent of the aggressor becomes important to be considered; and the crime is not complete except there be present an intent, not only to inflict an injury, but to go beyond the limits of a mere battery. Hence it is that the intent constitutes the very gravamen of the offense. State v. Malcolm, 8 Iowa, 413; 3 Cyc. 130, and cited cases. Now, necessary to intent is knowledge or belief. Accordingly, where, as here, the assault consists merely in the pointing of a gun, the party making the assault must know or believe that the gun is loaded and in condition to be discharged. Of course, if there is an accompanying discharge of the gun, the intent is easily inferable from that fact, and, as related to such a case, it is probably true that allegation of that fact would supersede the necessity for allegation of other facts evidencing intent. But where the allegation goes no farther than to charge the pointing of a gun, facts showing the intent necessary to the aggravated offense must be charged. Most certainly it would be necessary to prove that the gün was loaded, or that the aggressor believed it was loaded, and it is axiomatic in criminal law that matters essential to proof are essential to allegation. That is only another way of stating that all the facts necessary to make out the crime must be alleged and proven. I am not unmindful that embodied in *465the present indictment is the formal phrase that the defendant pointed the gun with intent, etc. That, however, is no more than to name the offense of which the pleader conceives that the defendant is guilty. The statute requires that this shall be followed by a statement of the facts constituting the offense, and included in these must be some fact averment on which can be predicated the legal conclusion that the pointing of the gun was with intent to commit an aggravated assault. It is not sufficient to charge an offense in the language of the statute by which it is created, except in those cases where the statute defines the offense, and the language includes every material fact constituting the same. State v. Whalen, 98 Iowa, 662; State v. Shaw, 35 Iowa, 575; State v. Davis, 41 Iowa, 311. Based on the foregoing considerations, I insist that as the fact, of intent was of prime materiality, and as the fact that the gun was loaded or believed to be loaded was essential to intent, such fact should have been alleged.
On the question arising from the proof as made on the trial, it appears without dispute that the threat made by defendant was a conditional one. The prosecutor was engaged in gathering corn in defendant’s field, and it was demanded of him that he desist therefrom. The threat to shoot was coupled with such demand, .and, on the demand being instantly complied with, defendant lowered his gun and the parties separated. Clearly enough here was proof of an assault, but in my judgment there is no logical ground on which to plant the assertion that there was an assault with intent to inflict great bodily injury. Without stopping for further citation of authorities, I conclude that the defendant should have been convicted of no more than a simple assault.
In the views thus expressed,
Ladd, C. J., concurs.