¶1 When a man presents a pistol at another, threatening to shoot, he puts him in fear, and gives him a legal excuse for a battery, and it may be questioned whether the act can be excused, by proving that the pistol was not loaded ; without also proving that the other person knew that fact. In this case there was no proof that the pistol was not loaded, and the question is, waa ihe State bound to prove that it was loaded. We entirely concur with the Judge in the Court below. The fact, that it was not loaded, is a matter of excuse, and must be proved by the defendant. The fact was within his knowl • edge, and as by his act, (actions, it is said, speak louder than words,) he 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.
¶2 Per Curiam. Judgment affirmed.