Kong

concur in the judgment, I upon the ground that upon the evidence before them the jury have determined that the unlawful attempt of tho defendant was coupled with a present ability—that is, an ability by the means then employed by him in furtherance of such attempt — to commit murder upon the policeman.

Appellant was convicted of the crime of an assault with intent to commit murder, and now prosecutes this appeal, insisting that the evidence is insufficient to support the verdict.

The facts of the case are novel in the extreme, and -when applied to principles of criminal law, a question arises for determination upon which counsel have cit- d no precedent.

A policeman secretly bored a hole in the roof of appellant’s building, for the purpose of determining, by a view from that point of observation, whether or not he was conducting therein a gambling or lottery game. This fact came to the knowledge of appellant, and upon a certain night, believing that the policeman was upon the roof at the contemplated point of observation, he fired his pistol at the spot. He shot in no fright, and his aim was good, for the bullet passed through the roof at the point intended; but very fortunately for the officer of the law, at the moment of attack he was upon the roof at a different spot, viewing the scene of action, *668 and thus no substantial results followed from appellant’s fire.

The intent to kill is quite apparent from the evidence, and the single question is presented, Do the facts…