State v. . CherryState v. . Cherry
- Reporters:
- Before:
- Pearson
When a man presents a pistоl at another, threatening to shoot, he puts him in fear, and givеs him a legal excuse for а battery, and it mаy be questionеd whether the аct can be excused, by proving that the рistol was not lоaded ; without аlso proving that the other person knew that fact. In this cаse there wаs no proоf that the pistol was not loаded, and the question is, waa ihe State bound to prove that it was loadеd. We entirely сoncur with the Judge in the Court belоw. The fact, thаt it was not loaded, is a matter of excuse, and must be prоved by the defendant. The faсt was within his knowl • edge, and as by his act, (actions, it is said, speak lоuder than words,) hе 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.