dissenting.
I respectfully dissent from that portion of the majority opinion which affirms Meier’s conviction for reckless endangerment. I believe that in determining whether or not Meier’s conduct constituted reckless endangerment there is an essential issue of whether the gun was actually loaded or unloaded.
In order to convict Meier of reckless endangerment as charged, the State must prove beyond a reasonable doubt that Meier created a substantial risk of serious bodily injury or death to another and that the circumstances manifested Meier’s extreme indifference to the value of human life. Section 12.1-17-03, N.D.C.C.
In State v. McLaren, 135 Vt. 291, 293, 376 A.2d 34, 36 (1977), the Supreme Court of Vermont interpreted its reckless endangerment statute (13 V.S.A. Section 1025) to proscribe conduct which would place the victim in actual danger of death or serious bodily injury, not mere apparent danger.1 State v. McLaren, supra, overruled State v. Cushman, 133 Vt. 121, 329 A.2d 648 (1974), where a majority opinion held that under the reckless endangerment statute it is irrelevant whether a weapon is loaded or unloaded. In overruling State v. Cushman, supra, the Vermont Court in State v. McLaren, supra, stated that:
“13 V.S.A. § 1025 [the reckless endangerment statute] proscribes conduct which places or may place a person in danger of death or serious bodily harm. We fully recognize, as did both the majority and dissenting opinions in Cushman, that the statutory presumption renders irrelevant the state of mind of the actor as it relates to the loaded nature of the firearm. We cannot agree, however, with the view expressed by the majority in Cushman that the presumption can be likewise construed to make irrelevant the actual dangerous nature of the firearm itself. We therefore overrule Cushman and hold that the ... [reckless endangerment statute was] intended to proscribe conduct which would place the victim in actual danger of death or serious bodily injury, not mere apparent danger.”
The Vermont Court further stated in State v. McLaren, supra, that in determining whether the victim was placed in an objective state of danger of death or serious bodily harm there is an essential issue of whether the gun was unloaded or otherwise inoperative.
In Cobb v. State, 495 So.2d 701, 703 (Ala.Crim.App.1984), the Alabama Court of Criminal Appeals determined whether present ability, as opposed to mere apparent ability, is necessary to support a reckless endangerment conviction by reviewing the law of assault. The Alabama Court in Cobb v. State, supra, quoted Rollins v. City of Birmingham, 344 So.2d 200, 203 (Ala.Crim.App.1977), where it was stated:
“ ‘The intentional presentation of a pistol or gun at another, within effective range, under such circumstances as denote an intention to shoot the other, coupled with the ability to do so, constitutes one method of accomplishing an assault. *388Tarver v. State, 43 Ala. 354.' (Emphasis added.)”
The Alabama Court found that the present ability to accomplish the assault is necessary and therefore a conviction for reckless endangerment would be sustained if there was proof that the gun was loaded or if the jury could rationally conclude from the evidence presented that the gun was loaded. The Alabama Court, in Cobb v. State, 495 So.2d at 704, further stated that:
“Absent a showing of actual ability to inflict harm, the most that [the defendant] could be guilty of would be menacing, ...”
In Commonwealth v. Trowbridge, 261 Pa.Super. 109, 115, 395 A.2d 1337, 1340-1341 (1978), the Superior Court of Pennsylvania held that its reckless endangerment statute “retains the common law assault requirement of actual present ability to inflict harm” and that while pointing an unloaded gun would sustain a conviction for simple assault it would not support a conviction for reckless endangerment.
While our reckless endangerment statute differs from these other states’ reckless endangerment statutes in certain respects, an analogy can be drawn between the statutory schemes generally and more particularly between the relationship of the simple and enhanced offenses.
In my opinion, the issue of whether a firearm was unloaded or was otherwise inoperative is an essential issue in determining whether under Section 12.1-17-03, N.D.C.C., a substantial risk of death or serious bodily injury is created.
The majority states that reckless endangerment occurs when the actor’s conduct creates a potential for harm. Additionally, the majority states that “the [potential for harm exists any time a gun is pointed at another because experience has too often shown that a gun may be loaded, regardless of what the actor may believe.” Thus, the majority suggests that the crime of reckless endangerment occurs any time a gun is pointed at another regardless if it is loaded or unloaded.
It is necessary to define the term “potential” before one can determine whether or not an unloaded gun creates a potential for harm. Potential is defined as “potent; that can, but has not yet, come into being; possible; latent” and “expressing possibility, capability, or the like.” Webster’s New World Dictionary 1114-1115 (2d ed. 1980). Also, it goes without saying that no one has ever been shot with a gun that was not loaded. Accordingly, I do not believe that the type of potential for harm as contemplated in the reckless endangerment statute, Section 12.1-17-03, N.D.C.C., is created from a gun that is not loaded any more than from a gun without a firing pin. The critical factor in finding a substantial risk is neither the intent of the actor nor the fear of the victim but, rather the actual danger created from the weapon. There must be a present ability, as opposed to a mere apparent ability, to support a conviction under our reckless endangerment statute.
This does not mean that there are no circumstances under which the pointing of an unloaded gun can create a danger of death or serious bodily injury to support a reckless endangerment conviction, even though not from the bullet which would be fired if the gun were loaded. Danger of death or serious bodily injury could be created where the resulting fear or apprehension of danger creates an actual danger of death or serious bodily injury to others, such as where an unloaded gun is pointed at a driver of a car on a highway because the danger would come from the loss of control of the vehicle in a panic situation. Also, pointing an unloaded gun into a crowd of people creates a significant risk that someone may retaliate with gunfire. See Commonwealth v. Holguin, 254 Pa.Super. 295, 307-308, 385 A.2d 1346, 1352-1353 (1978); see also State v. Emilo, 146 Vt. 277, 279, 501 A.2d 1188, 1189 (1985) (danger from a loaded but uncocked gun).
In the instant case, the defendant was charged only with recklessly endangering the officers. Under the circumstances of this case, the mere pointing of the gun itself did not place any other person in danger of death or serious bodily injury. The officers were alone on a farm in the *389middle of the night and standing behind their patrol car. There was no danger to vehicular traffic or pedestrians, and no crowd of people to panic.
There was testimony in the instant case that Meier checked the weapon to determine how many shells were in it by visually looking and with his finger feeling that there were only two shells in the rifle. It was argued that Meier could have easily been mistaken as to the number of shells the rifle contained because it was a dark night and no lights were on in the house. However, there was testimony from Sheriff Hendrickson that he neither observed any shell eject from the rifle nor noticed any shells on the ground after he disarmed Meier and operated the bolt action of the rifle. In addition, there was undisputed testimony by Deputy Keifert that after he retrieved the rifle he examined it and discovered that there were no live cartridges in it.
I believe that the rule of statutory construction that criminal statutes are to be strictly construed in favor of the accused dictates that such evidence is simply insufficient to establish beyond a reasonable doubt a substantial risk of serious bodily injury or death to another. Nevertheless, I do not condone Meier’s action. While I do not believe that there was sufficient evidence to convict him of the offense of reckless endangerment, his actions may have constituted a different offense which was not charged. E.g., Section 12.1-17-04, N.D.C.C. (Terrorizing); Section 12.1-17-05, N.D.C.C. (Menacing); and Section 12.1-17-01, N.D.C.C. (Assault).
For the reasons stated herein, I would reverse the conviction.
. 13 V.S.A. Section 1025 and Section 12.1-17-03, N.D.C.C., were both patterned after the Model Penal Code. See S.B. 2045, S.L. 1973, ch. 116, Section 17; see also, Model Penal Code Section 211.2.