¶2The indictment in this case was for “ an assault with a deadly weapon, with an intent to commit murder.” The defendant was convicted of “ an assault with a deadly weapon with an intent to inflict a bodily injury ” on the person of one George Lambert. The statute of this State defines an assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of another.”
¶3To constitute, then, the crime of which defendant was convicted, he must have made an unlawful attempt with a weapon deadly either in its nature, or capable of being used in a deadly manner, intending to inflict a bodily injury and with the present ability so to do. All these constituents of his crime must be established. That the pleader was aware of this fact appears from the indictment.
¶4If in this indictment it was necessary to allege that the pistol was loaded with gunpowder and leaden bullets, which under the circumstances it was, or to aver what was tantamount, that it was a deadly weapon, then it became necessary to support the allegation by proofs. There was no proof that the pistol was loaded with anything. Lambert was not within striking distance of defendant, but was within shooting range. The pistol held in the hand of defendant, capped, pointed at Lambert, and attempted to be discharged, would not be a deadly weapon unless loaded with something capable of wounding when discharged. No presumption of such loading can arise under the statute. To so presume is to infer a present ability, which is matter of affirmative proof, and from such inference to draw another of intention, and thus reason in a circle saying: To constitute the crime, must appear — first, a deadly weapon; second, the intention coupled with the ability to use it against the person of another. So the weapon is presumed to be deadly because defendant attempted to use it as if it Was, and the intention and ability are both presumed from the attempt; thus raising an inference upon an inference. There must be some primary proven fact to support any legitimate inference. In this case, the primary fact to be proven was the existence of a deadly weapon. A pistol may be a deadly weapon under some circumstances, without *116being loaded with gunpowder and ball. Under tbe circumstances of th,e present case it could not, so it was incumbent upon the prosecution to prove the fact. (State v. Swails, 8 Ind. 524, and note; Wharton Am.Crim. Law, Sec. 1280; State v. Neal, 37 Maine, 468.) The defendant asked the Court to instruct the jury “ That unless the State has proven beyond a reasonable doubt that the pistol of Napper was loaded, and in such a condition that it was capable of being discharged, they must find defendant not guilty.” Certainly there could not have been both the ability and intention to assault unless the facts suggested in the instruction existed, and had been proven ; therefore the instruction should have been given, and the refusal was error, for which the judgment is reversed and the cause remanded.