Holloway v. State
In Holloway v. State, 18 Ark. App. 136, 711 S.W.2d 484 (1986), the appellant was convicted of aggravated assault after he approached two women in a car, asked them for a ride and, when they refused, he pointed a gun in the window of the car.
He appealed his conviction, arguing that State failed to prove that the gun he used was loaded.
The court wrote:
"In the first place, there was no direct evidence that the gun used in the assault was loaded. The statute defining aggravated assault requires that the accused engage in conduct "that creates a substantial danger of death or serious physical injury to another person." The commentary to the statute states that it is unique to the Arkansas Criminal Code. It is not based upon the use of a deadly weapon or the creation of fear, but requires the creation of substantial danger. However, we think the jury could have found, under the evidence in this case, that an aggravated assault was committed even though there was no direct evidence that the gun was loaded. In a recent case, the Supreme Court of the United States said:
In addition, the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue. Finally, a gun can cause harm when used as a bludgeon."