If a person present a pistol, purporting to be a loaded pistol, at another, and so near as to have been dangerous to life if the pistol had gone off; this is an assault, even though the pistol were, in fact, not loaded.
The defendant, being engaged in an angry altercation with the plaintiff, aimed a gun at him in an excited and threatening manner, and snapped it twice. It was not, in fact, loaded, but the plaintiff did not know whether it was loaded or not.
Was it improper for the court to instruct the jury to consider if there was assault even if the gun was not loaded?
Held, that the defendant had committed an assault. The court may properly instruct the jury that they may consider the effect which finding trivial damages for breaches of the peace would have to encourage a disregard of the laws and disturbances of the public peace.