McClain, J.—
. 1. Assault with intent to do GREAT BODILY ' fic'iencyonn-dictment. I. The indictment charged that defendant willfully, maliciously, and unlawfully made an assault with a certain dangerous weapon, to wit, a shotgun, etc., which he pointed at the person assaulted, ' x ± ' and threatened to shoot said person “with intent to ¿o him great bodily injury.” By motion jn arrest of judgment, the defendant insisted in the trial court that the indictment was insufficient to support a conviction for the crime of assault with intent to do great bodily injury, and now complains of the overruling of such motion. The statutory definition of the offense attempted to be charged is as follows (Code, section 4771) : “If any person assault another with intent to inflict a great bodily injury, he shall be imprisoned in the county jail not exceeding one year, or be fined not exceeding five hundred dollars.” It is conceded for appellant that the indictment sufficiently charges an assault committed by pointing a gun at the person assailed, and it clearly states the [458]*458intent which by the language of the statute is sufficient to constitute an aggravated assault. As we understand the argument for appellant, two objections are made to the indictment: First, that the intent is not more specifically designated ; and, second, that the present ability to inflict the injury threatened is not sufficiently charged.
While it is usually sufficient in charging a statutory offense to follow the language of the statute as to the description of such offense, it is no doubt necessary in some way to individualize the particular offense charged, so that the defendant may know in what manner it is alleged to have been committed in order that he may make proper defense. It would not do,- for instance, to allege in a mere generalization that the defendant assaulted a person named with intent to do him a great bodily injury. It is not necessary, however, in offenses in which the intent constitutes the aggravation material to the punishment prescribed that the facts be alleged with the same particularity as where the prohibition of the statute is directed against the doing of an act which is made criminal. 2 Bishop’s New Criminal Procedure, section 77. 1 Wharton’s Grim. Law (10th Ed.), section 644. 1 McClain’s Crim. Law, section 280. Accordingly, it has been said by this court that an indictment alleging that defendant “ did then and there willfully and maliciously strike and beat C. D. with intent of doing her great bodily injury ” would be sufficient to charge the offense. State v. Carpenter, 23 Iowa, 506. And, to the same effect, see Murphey v. State, 43 Neb. 34 (61 N. W. 491). In the case before us the indictment charges an assault with a gun and a threat to shoot the person assailed with the statutory intent. These allegations clearly point out to the defendant the manner in which he was charged to have intended to commit the great bodily injury threatened, and in this respect we think the indictment was sufficient.
In State v. Clark, 80 Iowa, 517, and State v. Harrison, [459]*45982 Iowa, 116 (two judges in each case dissenting), it was held that an indictment charging an assault made with a weapon described, with intent to beat, strike, wound, etc., and the infliction upon the person assaulted of a great bodily injury, was not sufficient, for the reason that the intent to commit a great bodily injury was not specifically charged. Without now reviewing the correctness of those decisions (as to which the writer of this opinion has very grave doubt), it is sufficient to say that the objection there made is obviated in the present indictment; for the intent to do great bodily injury is not left to inference from the infliction of the injury, but is specifically alleged. We think the cases just cited are authority for holding the present indictment, which does thus specifically allege the statutory intent, sufficient so far as allegation of intent is concerned.
8. Same: present ability. As to the sufficiency of the allegation of ability to commit the offense charged, it may be conceded that allegation of intent alone is not sufficient either to charge an assault or to cliarge tíle intent relied upon as bringing • -jjie ease the class of aggravated assaults specified. The means alleged to have been employed by the defendant, or as intended to be used, must be a means reasonably calculated to effect the intended result; but it seems to us clear that an allegation of an intent to shoot made with reference to an assault committed by pointing a gun at another does sufficiently charge a present ability to inflict great bodily injury. The specific objection made is that there is no allegation that the gun was loaded; but how could defendant have intended to shoot the person assaulted unless the gun which he held in his hands was, in fact, or, as he believed, so loaded as that it could be fired. If he believed that it was loaded and intended to fire it at the person assaulted, he was guilty of an assault with intent to commit great bodily injury, although in fact and contrary to his belief it was not loaded. Kunkle v. State, 32 Ind. 220; Commonwealth v. Creed, 8 Gray (Mass.) 387; People v. Lee [460]*460Kong, 95 Cal. 666 (30 Pac. 800, 17 L. R. A. 626, 29 Am. St. Rep. 165) ; State v. Glover, 27 S. C. 602 (4 S. E. 564) ; 1 McClain’s Grim. Law, sections 226, 234, 266; 1 Wharton’s Grim. Law (10th Ed.), section 642. The Indictment was sufficient, therefore, in charging an intent to do great bodily injury by shooting the person assailed with a gun, although it was not specifically alleged that the gun was in fact loaded; for, while the defendant might have made a verbal threat to shoot with an unloaded gun, he could not have intended to shoot with a gun as charged unless he believed that it was in fact loaded. There seems to be very little authority one way or the other on this precise question, but in Bradberry v. State, 22 Tex. App. 273 (2 S. W. 592), an indictment in all essential particulars equivalent to the one now before us was held sufficient as against this very objection. It must be borne in mind that the intent of the assailant, and not the act in fact committed, provided, of course, there was an assault, constitutes the gist of the aggravated offense. Vosburgh, v. State, 82 Wis. 168 (51 N. W. 1092) ; People v. Miller, 91 Mich. 639 (52 N. W. 65). Of course, on the question of fact as to whether the assailant did intend to inflict an injury, proof that the gun was not loaded would be material. State v. Napper, 6 Nev. 115; Davis v. State, 25 Fla. 272 (5 South. 803). Biit the question whether the defendant did, in fact, have the intent charged in the indictment, was submitted to the jury on proper instructions, and it is not claimed that the verdict in this respect is without support in the evidence.
3 Same- du-piicity. II. The objection that the indictment is bad for duplicity is without merit. But one criminal act of assault is charged, and the addition of the charge of intent necessary f° constitute the aggravated assault described in the statute would not constitute the charge of a different crime in such sense as to justify objection to the indictment. Cokeley v. State, 4 Iowa, 477. The indictment does not charge an assault and a threat to commit an [461]*461assault, but it charges an assault with intent to do great bodily injury. The duplicity which was held fatal in State v. Orr, 89 Iowa, 613, and
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McClain, J.—
. 1. Assault with intent to do GREAT BODILY ' fic'iencyonn-dictment. I. The indictment charged that defendant willfully, maliciously, and unlawfully made an assault with a certain dangerous weapon, to wit, a shotgun, etc., which he pointed at the person assaulted, ' x ± ' and threatened to shoot said person “with intent to ¿o him great bodily injury.” By motion jn arrest of judgment, the defendant insisted in the trial court that the indictment was insufficient to support a conviction for the crime of assault with intent to do great bodily injury, and now complains of the overruling of such motion. The statutory definition of the offense attempted to be charged is as follows (Code, section 4771) : “If any person assault another with intent to inflict a great bodily injury, he shall be imprisoned in the county jail not exceeding one year, or be fined not exceeding five hundred dollars.” It is conceded for appellant that the indictment sufficiently charges an assault committed by pointing a gun at the person assailed, and it clearly states the [458]*458intent which by the language of the statute is sufficient to constitute an aggravated assault. As we understand the argument for appellant, two objections are made to the indictment: First, that the intent is not more specifically designated ; and, second, that the present ability to inflict the injury threatened is not sufficiently charged.
While it is usually sufficient in charging a statutory offense to follow the language of the statute as to the description of such offense, it is no doubt necessary in some way to individualize the particular offense charged, so that the defendant may know in what manner it is alleged to have been committed in order that he may make proper defense. It would not do,- for instance, to allege in a mere generalization that the defendant assaulted a person named with intent to do him a great bodily injury. It is not necessary, however, in offenses in which the intent constitutes the aggravation material to the punishment prescribed that the facts be alleged with the same particularity as where the prohibition of the statute is directed against the doing of an act which is made criminal. 2 Bishop’s New Criminal Procedure, section 77. 1 Wharton’s Grim. Law (10th Ed.), section 644. 1 McClain’s Crim. Law, section 280. Accordingly, it has been said by this court that an indictment alleging that defendant “ did then and there willfully and maliciously strike and beat C. D. with intent of doing her great bodily injury ” would be sufficient to charge the offense. State v. Carpenter, 23 Iowa, 506. And, to the same effect, see Murphey v. State, 43 Neb. 34 (61 N. W. 491). In the case before us the indictment charges an assault with a gun and a threat to shoot the person assailed with the statutory intent. These allegations clearly point out to the defendant the manner in which he was charged to have intended to commit the great bodily injury threatened, and in this respect we think the indictment was sufficient.
In State v. Clark, 80 Iowa, 517, and State v. Harrison, [459]*45982 Iowa, 116 (two judges in each case dissenting), it was held that an indictment charging an assault made with a weapon described, with intent to beat, strike, wound, etc., and the infliction upon the person assaulted of a great bodily injury, was not sufficient, for the reason that the intent to commit a great bodily injury was not specifically charged. Without now reviewing the correctness of those decisions (as to which the writer of this opinion has very grave doubt), it is sufficient to say that the objection there made is obviated in the present indictment; for the intent to do great bodily injury is not left to inference from the infliction of the injury, but is specifically alleged. We think the cases just cited are authority for holding the present indictment, which does thus specifically allege the statutory intent, sufficient so far as allegation of intent is concerned.
8. Same: present ability. As to the sufficiency of the allegation of ability to commit the offense charged, it may be conceded that allegation of intent alone is not sufficient either to charge an assault or to cliarge tíle intent relied upon as bringing • -jjie ease the class of aggravated assaults specified. The means alleged to have been employed by the defendant, or as intended to be used, must be a means reasonably calculated to effect the intended result; but it seems to us clear that an allegation of an intent to shoot made with reference to an assault committed by pointing a gun at another does sufficiently charge a present ability to inflict great bodily injury. The specific objection made is that there is no allegation that the gun was loaded; but how could defendant have intended to shoot the person assaulted unless the gun which he held in his hands was, in fact, or, as he believed, so loaded as that it could be fired. If he believed that it was loaded and intended to fire it at the person assaulted, he was guilty of an assault with intent to commit great bodily injury, although in fact and contrary to his belief it was not loaded. Kunkle v. State, 32 Ind. 220; Commonwealth v. Creed, 8 Gray (Mass.) 387; People v. Lee [460]*460Kong, 95 Cal. 666 (30 Pac. 800, 17 L. R. A. 626, 29 Am. St. Rep. 165) ; State v. Glover, 27 S. C. 602 (4 S. E. 564) ; 1 McClain’s Grim. Law, sections 226, 234, 266; 1 Wharton’s Grim. Law (10th Ed.), section 642. The Indictment was sufficient, therefore, in charging an intent to do great bodily injury by shooting the person assailed with a gun, although it was not specifically alleged that the gun was in fact loaded; for, while the defendant might have made a verbal threat to shoot with an unloaded gun, he could not have intended to shoot with a gun as charged unless he believed that it was in fact loaded. There seems to be very little authority one way or the other on this precise question, but in Bradberry v. State, 22 Tex. App. 273 (2 S. W. 592), an indictment in all essential particulars equivalent to the one now before us was held sufficient as against this very objection. It must be borne in mind that the intent of the assailant, and not the act in fact committed, provided, of course, there was an assault, constitutes the gist of the aggravated offense. Vosburgh, v. State, 82 Wis. 168 (51 N. W. 1092) ; People v. Miller, 91 Mich. 639 (52 N. W. 65). Of course, on the question of fact as to whether the assailant did intend to inflict an injury, proof that the gun was not loaded would be material. State v. Napper, 6 Nev. 115; Davis v. State, 25 Fla. 272 (5 South. 803). Biit the question whether the defendant did, in fact, have the intent charged in the indictment, was submitted to the jury on proper instructions, and it is not claimed that the verdict in this respect is without support in the evidence.
3 Same- du-piicity. II. The objection that the indictment is bad for duplicity is without merit. But one criminal act of assault is charged, and the addition of the charge of intent necessary f° constitute the aggravated assault described in the statute would not constitute the charge of a different crime in such sense as to justify objection to the indictment. Cokeley v. State, 4 Iowa, 477. The indictment does not charge an assault and a threat to commit an [461]*461assault, but it charges an assault with intent to do great bodily injury. The duplicity which was held fatal in State v. Orr, 89 Iowa, 613, and State v. Ashpole, 127 Iowa, 680, relied upon by appellant, was in charging entirely distinct transactions.
4. Venue: judicial notice. III. The proof of venue was not left to inference, but was directly submitted to the jury on evidence tending to show the crime to have been committed within,a mile and a half of the town of Blairsburg, and we can take judicial notice of the location of the town so as to know that the land on which the crime is shown to have been committed was necessarily within the limits of Hamilton county. State v. Reader, 60 Iowa, 527; State v. Farley, 87 Iowa, 22; State v. Arthur, 129 Iowa, 235.
5 Assault- cont<fdonbodiiyeat harm' IY. It is contended for appellant that the threat of bodily harm to the person assailed was conditional, and that as there was nothing to prevent his carrying out the threat ^ad he intended to do so, and he desisted from inflicting an injury upon compliance by the person assailed with his demands, there was not sufficient evidence of the intent to do harm. It is well settled, however, that a conditional threat of injury accompanied with an act calculated to put the person assailed in fear and with present ability to inflict the threatened injury is sufficient to constitute an assault. State v. Morgan, 25 N. C. 186 (38 Am. Dec. 714) ; Keefe v. State, 19 Ark. 191; State v. Malcolm, 8 Iowa, 413; State v. Shepard, 10 Iowa, 126; 1 Wharton’s Criminal Law (10th Ed.), section 607; 1 McClain’s Criminal Law, section 232. If the intent was to inflict great bodily harm in the event that the demand by defendant was not complied with by the person assailed, then the assault was with intent to do great bodily injury. Cato v. State, 4 Tex. App. 87. The court properly submitted the question of defendant’s intent to the jury, and he has no ground to complain.
[462]*4626. ASSAULT WITH INTENT TO 00 GREAT BODILY INJURY defini• tion: instruction. [461]*461Y. Several objections are made to the instructions, but [462]*462these may be satisfactorily disposed of without elaborate discussion. It is said that the offense with which defendant was charged is~ nowhere defined. The court did, however, tell the jury very explicitly that, to warrant conviction of tlie offense charged, they must find beyond a reasonabl& doubt that the gun was loaded, that defendant threatened to discharge its contents into the person assailed, and that he intended thereby to inflict up~n such person a great bodily injury. That the intent to injure another by discharging a loaded gun at him would be at least an intent to inflict great bodily injury admits of no doubt. A great bodily injury is not capable of very exact description. State v. Gillett, 56 Iowa, 459. The intent here was therefore sufficiently described.
7. SAME. It is further said there was no instruction requiring the jury to find that the assault was unlawful. But the acts charged in the indictment as having been willfully and unlawfully done as constituting an assault were recited in the instructions, and it was left to the jury to say whether the defendant was guilty of such acts, and under the circumstances of the case this was sufficient. The jury could not have been misled, for the evidence did not tend to show that the acts charged in the indictment and which the evidence tended to establish were lawfully done in defense of the person or the property of the defendant, nor was any justification or excuse therefor suggested by the evidence. The sole question for the jury with reference to the assault was whether the acts charged, and which the evidence tended to establish, were, in fact, committed by the defendant. If such acts were committed, then they were unlawful and constituted an assault. Self-defense, which was involved in the case of State v. Shea, 104 Iowa, 724, was not even suggested by anything appearing in the evidence in this case.
The instructions arc not open to the objection that they [463]*463authorized a conviction if the jury should find merely that the defendant intended to discharge the contents of the gun toward the person assailed. The instruction in question is to the effect that if defendant pointed the gun in any angry manner at such person, and threatened to discharge its contents into him, and cocked the gun for the apparent purpose of doing so, the jury would be warranted in the inference that the gun was loaded. So far as the objection is made that this instruction only required a finding that a gun was intended to be discharged towards a person assailed, it is entirely without merit.
8' tial evidence.instruction. The court instructed the jury that the State might prove, by circumstantieal evidence, that the gun was loaded, and it is complained that no further instruction as to circumstantial evidence was given. But no such instruction was asked as in State v. Blydenburg, 135 Iowa, 264, or Beason v. State (Tex. Cr. App.) 63 S. W. 633. We can see no occasion under the record in this case for any elaboration of the law with reference to circumstantial evidence. State v. House, 108 Iowa, 68; Thomas v. State, 43 Tex. Cr. R. 20 (62 S. W. 919, 96 Am. St. Rep. 834); Cotton v. State, 87 Ala. 75 (6 South. 396); State v. Donnelly, 130 Mo. 642 (32 S. W. 1124).
Finding no error in the record, the judgment is affirmed.