Simpson

The defendant was convicted of an assault with a deadly weapon, accomplished by thrusting the muzzle of a loaded rifle against the person of another with the threat to shoot him. The shooting was averted by wresting the weapon from the defendant and throwing it into a river near by. Prom an order granting a new trial the People have appealed.

The evidence is undisputed that at the time of the alleged assault there were ten loaded cartridges in the magazine of the rifle, although the firing chamber was empty. It is therefore contended the rifle, in that condition, did not constitute a deadly weapon, for the reason that the defendant did not possess the present ability to commit a violent injury, by firing the rifle, without first transferring a cartridge to the firing chamber by the operation of a lever. In granting a new trial the trial court said:

The affray grew out of a quarrel respecting the use of a bridge which crosses a stream in the vicinity of the defendant’s property. The road crosses this bridge at a considerable grade. The trucks of a business enterprise were accustomed to cross this bridge. In a prior conversation over the telephone, with Campbell, the employer of…