Thе respondent was convicted under an information charging that he did at the time and place named “discharge, without injuring any person, a firearm, while intentionally without malice aimed at and toward Wyman Draper, Clarence Sherman, Arthur Reed, аnd Jum Elliott, contrary,” etc.; the information being filed under section 11510, 3 Comp. Laws.
Three of the persons last above named wеre sworn as witnesses on behalf of the people. It appeared from their testimony that on the night of December 12, 1910, at about the hour of 11 o’clock, the respondent, who was engaged in business in the village of North Branch, came out оf his place of business onto the street; that they were standing on the opposite side of the street from respondеnt; that, when he saw the witnesses, he said to them, “You fellows will get your eye full. I will get you sons of bitches;” that respondent then re-entered his shop, and in a few minutes came out armed with a revolver; that they immediately started to run; that re
At the close of the evidence, counsel for the respondent moved the court to dischаrge the respondent, for the reason that it appeared from the evidence that respondent made threats and acted with malice, and that the shooting was not careless within the meaning of the statute. The motion was overruled аnd an exception taken.
In its charge to the jury the trial court used the following language:
“Butthere is evidence in this casе, gentlemen, to go to you for your consideration as to whether or not this respondent was intoxicated. And I think this is the corrеct view of this statute that it could apply to a case where the respondent was bo intoxicated that he did not know what he was about and incapable of forming any intention. Suppose, for instance, that it were true (I am not saying that it is) thаt this respondent had been drinking, and that he was in such a mental condition that he was prepared to say anything, indulge in threats, thrеaten to do up these young men or any other men he might happen to see or fancy were annoying him. If he were so much under the intoxication that he was incapable of forming an intent to either kill, maim, or injure these young men, simply got the gun and fired it on the ground or in the air, or even pointed it toward these young men, if his mind was in such a condition that he did not know what he was аbout, then I say there is evidence to go to this jury. And, if they believe these facts beyond a reasonable doubt, then they could say the act was not done with malice; that his mind was incapable of having malice as the law describes malice.
“A lеgal description of malice would be an act accompanied with a malicious intent, an intent to injure, an intent as applied to this class of actions to do some serious harm, but, if the respondent were in that mental condi*13 tion that he could not have any such intent as that, then he cannot he said to have malice such as I have described of a man who would do those acts not intoxicated and in his right mind. So I say to you, if you find beyond a reasonable doubt that this respondent wаs so under the influence of liquor, that he was incapable of forming an intent to injure these young men, or if he was incapable of having malice, as it is usually described, and it was simply a drunken act, that of going out and firing the gun upon the streets of North Branch regardless of whether he hit any one or not, then he is guilty under this statute. * * *
“ It may be true that if the respondent had testified he may have shown such acts on the part of these young men as to offer some excuse for a loss of temper, if it was due to а loss of temper, but you must take this case as it is before you, and it is before you only upon the testimony of these three yоung men and the village marshal.”
The respondent was convicted and sentenced, and the case is here upon a bill оf exceptions. Error is assigned upon the refusal of the court to grant the motion to discharge the respondent, and upon the portions of the charge above quoted.
The statute under which the information was filed is entitled “An act to prеvent the careless use of firearms.” In the case of People v. Chappell,
“ The statute was designed to punish a class of acts done cаrelessly, but without any design of doing mischief, and the various sections must, under our Constitution, be construed so as to conform, to the titlе. The absence of malice is as necessary an ingredient in the statutory definition as the use of firearms. And the offense is рurely statutory.”
See, also, People v. McCully,
Error is alsо assigned upon the charge relating to the fact that respondent had not testified as a witness in his own behalf. It is urged that it was the right of the respondent to go to the jury without any statement of the court as to what might have been shown by respondent’s testimony had he taken the stand. We think that the jury’s attention should not have been challenged upon this subject under the evidence disclosed in this record, and no comment was proper upon the subject. People v. Mitchell,
For the errors pointed out, the judgment below is reversed, and a new trial granted.