Page:Federal Reporter, 1st Series, Volume 2.djvu/71

 64 FEDERAL REPORTBR. �"by means not constituting an assault mit a dangerona •weapon." But this is necessarily avoided, and, in effect, ren- dered null, by tiie very statement of the commission of the alleged offence, that the defendant attempted to commit mur- der by shooting Eoy with a loaded pistol. �Whether a particular weapon is a deadly or dangerous one is generally a question of law. - Sometimes, owing to the equivocal character of the instrument — as a belaying pin — or the manner and circumstanees of its use, the question becomes one of law and fact, to be determined by the jury under the direction of the court. But where it is practicable for the court to declare a particular weapon dangerous or not, it is its duty to do so. A dangerous weapon is one likely to pro- duce death or great bodily injury. A loaded pistol is not only a dangerous but a deadly weapon. The prime purpose of its construction and use is to endanger and destroy life. This is a fact of sucb general notoriety that the court must take notice of it. U. S. v. Small, 2 Curt. 242 ; U. S. v. Wil- ton, 1 Bald. 99. It appears, then, from the indictment, not- withstanding the averment therein to the contrary, that the act alleged to be an attempt to commit murder was an assault with a dangerous weapon, and therefore not punish- able by the statute. �The motion in arrest of judgment must be allowed, and the defendant discharged. �By this ruling the defendant will escape punishment for what appears to have been an atrocious crime, but the court cannot inflict punishment where the law does not so provide. It is the duty of the legislature to correct the omission or defect in the law, and it is to be hoped that the resuit in this case will attract the attention of congress to the matter at an early day. ����