Opinion
09-29-1909
STATE v. GAM.
Wm. G. Jones, for the State. Caleb E. Burchenal and W. W. Knowles, for defendant.
James H. S. Gam was indicted for pointing a gun at prosecutor. Verdict, not guilty.
Argued before PENNEWILL, C. J., and CONRAD and WOOLLEY, JJ.
Wm. G. Jones, for the State. Caleb E. Burchenal and W. W. Knowles, for defendant.
WOOLLEY, J. (charging the jury). James H. S. Gam, the defendant in this ease, stands indicted for intentionally pointing a gun at Edward Gam, the prosecuting witness. The act charged in the indictment is made a misdemeanor under a law which provides "that it shall be unlawful for any person, either in jest or otherwise, intentionally to point a gun, pistol or other firearms at or towards any other person at any time or place." Act April 8, 1881 (16 Del. Laws, p. 710, c. 548, § 3). This law was enacted for the twofold purpose of preventing loss of life by the acts of irresponsible people, who are prone to jest with deadly weapons, and to punish others who endanger life by the use of such weapons, not jestingly, but seriously, yet in a manner to escape indictment for assault with intent to commit murder.
In the crime of assault with intent to commit murder, to perpetrate which firearms are frequently used, there are two elements—one the act of assault, and the other the intended consequences of that act. In the misdemeanor of pointing a gun there is but one element, the act of pointing, and no element of intention with respect to the purpose for which the weapon is pointed. In the crime of assault with intent to commit murder there is the ingredient of malice; but in the misdemeanor of pointing a gun there is no ingredient of malice, no motive to injure. In the latter offense, questions of intent with respect to innocence, mischief, or malice do not enter. The intentional act of pointing the gun constitutes the whole offense. Therefore, to warrant conviction for this misdemeanor, it is not necessary for the state to prove that the defendant pointed the gun, either with an intention to jest or to injure. It is only necessary for the state to prove that the defendant intentionally or purposely pointed the gun at or towards the prosecuting witness, so as to exclude an inference that he did it unintentionally or accidentally.
From this statement of the law, it appears that the one question submitted to you for your determination is the act of intentionally pointing a gun by the defendant at or towards the prosecuting witness. This question you are to determine from the acts and conduct of the defendant and from all other circumstances proven in the case. Where the testimony is conflicting, as it is in this case, you should reconcile it, if you can; but, if you cannot, you should accept that part of it which you deem worthy of credit and reject that which you deem unworthy of credit, having regard to the intelligence or ignorance of the witnesses, their opportunity to observe, know, and remember the facts to which they have testified, and their bias arising out of interest or prejudice.
If, after a deliberate analysis and considerationof all the evidence, you are satisfied beyond a reasonable doubt that James H. S. Gam intentionally or purposely pointed a gun at or towards Edward Gam, your verdict should be guilty; but if there has been proved anything that raises in your minds a reasonable doubt that the defendant so pointed the gun, or that he intended to so point it, then the defendant is entitled to the benefit of that doubt, and your verdict should be not guilty. But this doubt must not be a mere fanciful, vague, or speculative doubt, but a reasonable, substantial doubt, arising from the evidence and remaining in your minds after a careful consideration of the testimony—such a doubt as reasonable, fair-minded, and conscientious men would entertain under all the facts and circumstances of the case.
Verdict, not guilty.