People v. Montgomery

Defendant was informed against for the crime of assault with a deadly weapon, with intent to kill and murder one William F. Freehardt. The jury found the defendant guilty of an assault with a deadly weapon and recommended the defendant to the mercy of the court. The court sentenced defendant to pay a fine of $600, and, in default of payment, to be confined in the county jail for the term of one day for each two dollars of said fine and until said fine is paid. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

It is urged, as the principal ground for a reversal, that there is no evidence that the gun, with which the alleged assault was committed was loaded; that the evidence showed that it was not loaded, and that there is no evidence from which the jury could have inferred otherwise.

It has been held by our supreme court that the pointing of an unloaded gun at the prosecuting witness accompanied by a threat to shoot him, without any attempt to use it otherwise, is not an assault with a deadly weapon, and cannot sustain a conviction for an assault with a deadly weapon, for want of a present ability to commit a violent injury on the…