(dissenting). The opinion in which the majority concur, while stating it refers to the facts in the present case, is in reality holding and deciding that the pointing of an unloaded weapon at another does not, as a matter of law, constitute assault in the second degree. After so concluding, it is suggested that such an act might be sufficient to sustain a simple assault or as classified under the Penal Law, assault in the third degree.
In the present case the complainants, husband and wife, had taken the defendant’s wife, who was living separate from him, to visit their children and while complainants’ car was parked in front of the residence defendant came to the car pounding on the windows, using abusive and threatening language. To avoid trouble complainants left, went down the road, drove *238into a driveway to turn around when their ear was blocked by the car of the defendant who thereafter came again to the ear of the complainants, again used threatening and abusive language, went to his car and returned with what appeared to be a sawed-off shotgun, pointed it at complainants and said, “you see this, I will get you yet”. After a short time he lowered the gun, returned to his car and drove away. That the complainants were put in fear is shown by the statement of Mrs. Woolever as follows: “We were very alarmed” and “ When you look at a gun, it seems like an eternity, when you are looking at the wrong end.” Both of the complainants testified they did not know whether the gun was loaded and defendant testified it was not loaded. Under the peculiar circumstances in this case the defendant is the only one who would have such knowledge.
There are several reasons to suggest that the Legislature intended that the pointing of a gun in a threatening and suggestive manner came within the purview of subdivision 4 of section 242 and constituted a prima facie case under that section which provides:
“A person who * * *
“ 4. Wilfully and wrongfully assaults another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm * *
There is a decided difference in the above wording when compared to assault first as defined by section 240:
‘ ‘ A person, who, with an intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another:
“ 1. Assaults another with a loaded fire arm * # *.”
Admittedly subdivision 4 of section 242 requires no actual physical hurt or injury. Its terms should be satisfied when a person by the use of a weapon or other thing likely to produce grievous bodily harm threatens to inflict such harm upon another and appears to be capable of doing so.
That does not necessarily mean that the person so charged will be found guilty but does make it a factual and not a legal question as determined by the majority herein.
Assault has been defined as “an intentional attempt, displayed by violence or threatening gesture, to do injury to, or commit a battery upon, the person of another. A battery is a wrongful physical contact with the person of another ”. (3 N. Y. Jur., Assault and Battery, p. 230.)
*239‘1 An assault may be committed without physical contact with the person of the one assaulted, but a battery, which is necessarily the consequence of an assault, can be accomplished only by an actual touching of the person of another (3 N. Y. Jur., Assault and Battery, p. 231.) (See, also, 4 Am. Jur., Assault and Battery, pp. 124-125.)
The majority opinion relying heavily upon People v. Katz (290 N. Y. 361) holds that an intent is necessary on the part of the defendant, and that in the particular case here considered the request by counsel for the defendant to charge in that respect and its refusal by the court constituted reversible error.
It seems to me that the act herein speaks for itself. The raising up a gun is a sufficient act accompanied by the circumstances— pointing at complainants and using threatening language — to demonstrate an intention on the part of the defendant likely to produce grievous bodily harm, and whether the gun was or was not loaded is a matter of defense and must be proven by the defendant. Here that fact was solely within the knowledge of the defendant and it would be imposing an unreasonable duty to require the People to show defendant’s intent when he pointed a gun at another in a threatening manner accompanied by threatening language. The indictment herein did not use the word “ intent ”. In People v. Katz the case involved the commission of a crime under subdivision 3 of section 242 and not subdivision 4, but in any event in my opinion the theory of the dissenting opinion as to the necessity of intent was correct.
There appear to be no recent cases dealing with this particular proposition, but the theory here advocated was sustained in earlier cases. (See People v. Morehouse, 53 Hun 638, opinion in 6 N. Y. S. 763; People v. Ryan, 55 Hun 214; People v. McKenzie, 6 App. Div. 199.) In People v. Legacy (4 A D 2d 453) the defendant was indicted for robbery first and convicted of robbery third, the principal question involved whether a pistol was real or a toy gun as claimed by defendant. This question was submitted to the jury as part of the proof essential to the commission of the crime charged.
It is, therefore, my opinion that the present nefarious facts constituted a prima facie case of assault second degree - in accordance with subdivision 4 and that the jury in considering the testimony of the defendant that the gun was not loaded — a factual question — had a right to determine the question based upon his credibility and his interest in the outcome of the trial. Under such circumstances a jury would always have the right to find the defendant guilty of a lesser crime or of no crime, *240but to say that the circumstances here do not constitute a prima facie case of assault in the second degree as a matter of law is error. With the prevalence of heinous, vicious and brutal crimes in ever increasing numbers such an interpretation can and will be a great detriment to proper law enforcement.
Under the circumstances, it was not error for the court to refuse to charge as requested by the attorney for the defendant and while the charge itself conceivably could have been in more factual detail and further explanation of the law, there being no objection by the defendant to that part thereof, I vote to affirm.
Bergan, P. J., Coon and Gibson, JJ., concur with Reynolds, J.; Herlihy, J., dissents, in an opinion, and votes to affirm.
Judgment of conviction reversed, on the law and the facts, and a new trial ordered upon the ground that the record does not sustain a conviction of assault in the second degree.