#### THE STATE vs. DARLING CHERRY.

Whether, when n man presents a pistol at another, threatening to shoot, and the pistol is not loaded, ho is guilty of an assault, may admit of some question, but the man charged, clearly, cannot be excused, unless he proves that it was not loaded. The State is not bound to prove that it was loaded.

Appeal from the Superior Court of Law of Martin County, at the Fall Term 1849, his Honor Judge Bailey presiding.

This was an indictment in the usual form for an assault and battery. Upon the trial it was proved, that the prosecutor was a constable and had in his hands an execution against the defendant, under which he seised a negro belonging to the defendant. Whereupon, the defendant, standing within a few feet of the prosecutor, and within carrying distance of the pistol, presented the same at the prosecutor, remarking to him, “If you do not turn the negro loose I will shoot you,” by which the prosecutor was put in fear. The prosecutor did not turn the negro loose, and the defendant immediately lowered the pistol and went away.

The defendant’s counsel contended, that, as it did not appear that the pistol was loaded, the defendant was not guilty. The Court charged the jury, that, if they believed the facts deposed to were true, the defendant was guilty in law of an assault.

*476The jury found the defendant guilty of an assault, and from the judgment on the verdict the defendant appealed.

Attorney General, for the State.

Biggs, for the defendant.

Pearson, J.

When a man presents a pistol at another, threatening to shoot, he puts him in fear, and gives him a legal excuse for a battery, and it may be questioned whether the act can be excused, by proving that the pistol was not loaded ; without also proving that the other person knew that fact. In this case there was no proof that the pistol was not loaded, and the question is, waa ihe State bound to prove that it was loaded. We entirely concur with the Judge in the Court below. The fact, that it was not loaded, is a matter of excuse, and must be proved by the defendant. The fact was within his knowl • edge, and as by his act, (actions, it is said, speak louder than words,) he represented the pistol to be loaded, he has no right to complain, that such is p~ima facie taken to be the fact, unless he proves to the contrary.

Per Curiam. Judgment affirmed.