¶1(concurring).
¶2Under Act 987 of September 12, 1969, § 10 reads:
“The decisions of the supreme court shall govern the holdings and decisions of the courts of appeals, and the decisions and proceedings of such courts of appeals shall be subject to the general superintendence and control of the supreme court as provided by section 140 of the Constitution of the state.”
¶3Nevertheless, § 34 of the same Act repealed Code 1940, T. 13, § 95, doubtless the source of this new § 10.
¶4It follows needless to say (if I may be indulged the contradiction) that our new bifurcated intermediate (though “final”-save-for-§ 140-constitutional oversight) Appellate Department is essentially a stare decisis court, regardless of the seeming power to overrule prior decisions implied in § 32(4) of said Act 987.
¶5Taking this premise as valid, I consider that our Presiding Judge has correctly followed the rather unpersuasive reasoning of the ancient distinction between a tortious and a criminal assault. In the instant case, the rule puts an impossible burden on the State because it is altogether reasonable .to conjecture that the gun was in fact loaded. Here no one but the appellant knows.
¶6However, cases as early as State v. Clarissa, 11 Ala. 57 adhere to the doctrine. See Anno., 79 A.L.R.2d 1412 for the diversity shown in English and American courts.
¶7The presently applied construction of this statutory crime has been known to our Legislature constructively since the Chapman opinion, i. e. almost 85 years. Nullum crimen sine lege is the controlling maxim, even when the principle of moral guilt condemns the prisoner’s conduct by analogy to another actus reus admittedly criminal.