Bleckley, Justice.
1. As the prisoner was found guilty of an assault, and not of the offense of shooting at another, we need not, and will not, examine the points made, further than to see that there was no error in so far as the element of assault was concerned. The higher offense was ignored by the finding, and that put it out of view in ruling upon the motion for a new trial, there being no certain evidence that the gun was dangerously loaded.
2, 3. There is no dispute that the gun was loaded with powder, and that the prisoner fired at the engineer, at the distance of about twenty steps. Grant that it was done only “ to have a little fun out of the engineer,” in the merry season of Christmas, it was an assault. The engineer was not one of the revellers, but was engaged in the earnest and responsible vocation of running a locomotive and train upon a railroad. He had a right to pass on his way without being shot at from the roadside. It is not pretended that he knew with what the gun was charged, or for what purpose it was presented at him and firedj Those who shoot at their friends for amusement ought to warn them first that it is mere sport, and that there is no danger. Fun is rather too energetic, even for Christmas times, when it looks like a disposition to indulge in a little free and easy homicide. Shooting powder-guns at a man as a practical joke is among the forbidden sports.
Judgment affirmed.