#### The State of Ohio, Appellee, *v.*Moherman, Appellant.

(Decided March 16, 1939.)

*Mr. A. Ross Siverling,*for appellee.

*Mr. Ear old P. Welsh,*for appellant.

Lemert, J.

This cause was brought in the -Court of Common Pleas of Ashland county, Ohio, on an indictment charging the defendant with intentionally pointing and aiming a firearm at or toward Robert E. Lati*259mer and Carl F. Sturts, in violation of Section 12422, General Code. Defendant was found guilty by a jury, of assault in violation of Section 12423, General Code. Section 12422, General Code, provides:

“Whoever intentionally, *and without malice,*points or aims a firearm at or toward a person or discharges a firearm so pointed or aimed, or maims or injures a person by the discharge of a firearm so pointed or aimed, shall be fined not more than one hundred dollars, or imprisoned not more than one year or both. This section shall not extend to a case when firearms are used in self-defense, or in the discharge of official duty, or in case of justifiable homicide.” (Italics ours.)

The jury in this case found the defendant not guilty of the offense of pointing firearms, as prescribed in Section 12422, General Code, and as charged in the indictment, but found him guilty of assault under Section 12423, General Code, which provides:

“Whoever unlawfully assaults or threatens another in a menacing manner, or unlawfully strikes or wounds another, shall be fined not more than two hundred dollars or imprisoned not more than six months, or both.” It will be noted that the defendant was not convicted under the charge contained in the indictment but was convicted of a separate and distinct offense, prescriben by an entirely different statute. It is to be noted that while these two sections just quoted are in the same chapter and .have to do with offenses against the person, yet the penalty for each is entirely different. The defendant was charged in the indictment with the doing of a certain act without malice and was found not guilty, but was convicted of a crime charging malice or the doing of a certain act in a menacing manner.

We are of the opinion that the charge of assault was not contained in the indictment upon which the defendant was tried and that the court in charging the jury *260in this case upon the offense of assault was in error.

The language used in Section 12423 is:. “Whoever unlawfully assaults or threatens another in a menacing manner,” etc. .We are of the belief that a “menacing” manner means the showing of an intention to inflict evil — a threat — an indication of probable evil or hurt to come. Malice in law means the state of mind manifested by an intent to commit an unlawful act, or, in other words, it means ill will, spite, grudge, envy and hatred.

The essence of the crime charged in this indictment was that a certain thing was done *without malice.*As a result of the charge to the jury and the jury’s verdict defendant was found guilty of a crime *with malice.*The verdict is inconsistent, and the court should not have charged the jury with reference to “assault” in view of the two separate and distinct statutes just quoted. We are of the opinion that there were no different degrees included within the offense as charged. The elements of the offense of “assault” are not contained in the crime with which defendant was charged. “Assault” is not a lesser or inferior offense than was sought to be charged. The penalty for “assault” under Section 12423, General Code, is “shall be fined not more than two hundred dollars or imprisoned not more than six; months, or both”; whereas, under Section 12422, General Code, the offense charged in the indictment, the penalty is “shall be fined not more than one hundred dollars, or imprisoned not more than one year or both.”

We are, therefore, of the opinion that the defendant was unlawfully convicted. The verdict is set aside and held for naught and the judgment of the Common Pleas Court is reversed and the cause remanded.

*Judgment reversed and came remanded.*

Sheeick, P. J., and Montgomery, J., concur.