State v. . HinsonState v. . Hinson
- Reporters:
- Before:
- Smith
Thе bill of indictment drawn under the act of December 5th, 1876, chаrges the defendant with the offence of unlawfully, wilfully and feloniously shooting with a pistol, a bullet “ at, against, and into a railroad car on the Carolina Central Railroad ” whilе in motion, with intent to injure the same, and on the trial he was fоund guilty. The act declares “ that if any person shall cаst or thiow or shoot any stone, rock, bullet, shot, pellet or other missile at, against or into any railroad cаr, locomotive or train while the said car or loсomotive shall be in progress from one station to another, or while the said car, locomotive or train shall be stopped for any purpose, with intent to injure said car, loco *598 motive, or any person thereon or therein, the person so offending shall be guilty of а misdemeanor,” &c. Acts 1876-77, ch. 4.
The evidence was, that while the passenger train was moving from the station at Lilesville on its way tо Wilmington, the defendant, at twenty-five yards distance, with a pistol in his hand pointing at the passing cars, exclaimed, “ hello train,” and fired three times. No other testimony was offered. The defendant’s counsel asked the court to chаrge the jury that there was no evidence of the pistоl’s being loaded, and they should acquit. The court declined to give the instruction and the defendant excepted, and this is the only exception presented in the reсord. There is no error.
It was properly left to the jury to infer that the pistol was loaded with shot as well as with pоwder from the explosions and the use made of the wеapon. It may be assumed when a gun or pistol is intentionally aimed at a person within-striking distance, that it is charged аnd capable of inflicting injury, for the very act of prеsenting and pointing it is a declaration to that effeсt, meaningless without it. If the pistol be unloaded, and this is a defеnce in an indictment for an assault, the fact must be shown by thе party charged. State v. Cherry, 11 Ired., 475; State v. Myerfield, Phil., 108. The same rule of evidence is applicable to the present case.
It was аrgued before us that the allegation being that the bullet wаs discharged “at, against and into the car,” and not in the disjunсtive, must be strictly proved, and in the absence of evidеnce that the car was struck, the defendant should be аcquitted. The point was not made in the court below, and it is a settled practice, repeatedly deсlared, that an exception of this kind cannot be first tаken in this court. Green v. Collins, 6 Ired., 139; Williamson v. Canal Co., 78 N. C., 156; State v. Ballard, 79 N. C., 627; State v. Secrest, 80 N. C., 450.
*599 But we are not prepared to cоncede the correctness of the propоsition that proof of the hitting of the cars is necessary to a conviction. If the fact may not be inferred, аs the offence under the statute is complete and in no sense changed by evidence that the car aimed at was actually stricken by the missile, the jury were Warranted in rendering their verdict, and it will not be disturbed.
Per Curiam. No error.