Goldmann, Leonard and Fritz. The opinion of the court was delivered by Leonard, J.A.D.
Following a jury trial defendant appeals from convictions for assault with a deadly weapon (N.J.S.A. 2A:90-3) and for threatening to take the life of another (N.J.S.A. 2A:113-8). He was acquitted of a charge of atrocious assault and battery (N.J.S.A. 2A:90-1)
On September 28, 1968 defendant and Nathaniel Smith, the alleged victim, following an exchange of hostile words, engaged in fisticuffs in which Smith sustained a cut eye.
Smith, his mother, Lizzie Hardy, and his aunt, Ella Mae Harvey, all testified substantially the same as to what followed. They stated that Smith was walking back to his mother's house when he met her and his aunt on the street. While they were conversing, defendant returned, pulled out a gun, put it to Smith's chest and said "I will kill you * * * Don't you know I just got back from Vietnam."
Smith further testified that he was frightened by the gun, which he estimated to be a .38-caliber snub-nosed revolver. He ran to the Second Precinct, and from there was taken to a hospital for stitches in his eye.
Defendant testified that following the fight, he walked up to Smith and "pointed my fist out to him and I told him this better not happen no more." He denied having a gun and he did not remember whether he stated that he would kill Smith.
Defendant first contends that in order to convict him for a violation of N.J.S.A. 2A:90-3 the State must prove beyond a reasonable doubt that he had the present ability to carry out the attempt or offer to injure another. Thus, he argues that the State's burden was to prove that the gun allegedly used by him was loaded. He urges that the trial court erred in not so charging the jury.
This point was not presented to the court below and is raised here for the first time. At the trial defendant advanced no such defense, rather he denied that he used a gun. The record does not disclose whether the gun was loaded or not.
N.J.S.A. 2A:90-3, in its relevant part, provides:
Any person who wilfully or maliciously assaults another with an offensive weapon or instrument * * * is guilty of a high misdemeanor.
The issue of whether present ability, as opposed to mere apparent ability, is necessary to support a conviction under the above statute does not appear to have been previously determined in this State. There is a considerable conflict of authority in other jurisdictions as to whether a criminal assault may be committed with an unloaded firearm where it is not used or intended to be used as a club or bludgeon. See 6 Am. Jur. 2d, Assault and Battery , § 34 at 34, and § 54 at 51; 79 A.L.R. 2d 1412 (1961), A.L.R. 2d Later Case Service (Vols. 79-84) at 80. Much of this conflict stems from the wording of the specific statutes enacted in the various jurisdictions. 6 Am. Jur. 2d, supra at 35. We believe the sounder rule to be that apparent present ability will suffice. The pointing of an unloaded gun at another within range is sufficient to support a finding of guilt, if the one assaulted had a well-founded apprehension of peril. State v. Stationak , 73 Wash. 2d 647, 440 P. 2d 457 (Wash. Sup. Ct. 1968), adhering to an earlier rule enunciated in State v. Shaffer , 120 Wash. 345, 207 P. 229 (Wash. Sup. Ct. 1922).
Although, as we have noted, there is no case on point in our State, we do find support for our ...