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, *668and 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 stated constitute an assault ? Our criminal code defines an assault to be “ an unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of another.” It will thus be seen that to constitute an assault two elements are necessary, and the absence of either is fatal to the charge. There must be an unlawful attempt, and there must be a present ability, to inflict the injury. In this case it is plain that the appellant made an attempt to kill the officer. It is equally plain that this attempt was an unlawful one. For the intent to kill was present in his mind at the time he fired the shot, and if death had been the result, under the facts as disclosed, there was no legal justification to avail him. The fact that the officer was not at the spot where the attacking party imagined he was, and where the bullet pierced the roof, renders it no less an attempt to kill. / It is a well-settled principle of criminal law in this coun- [ try, that where the criminal result of an attempt is not accomplished simply because of an obstruction in the way of the thing to be operated upon, and these facts are unknown to the aggressor at the time, the criminal attempt is committed. [Thus an attempt to pick one’s pocket or to steal from his person, when he has nothing in his pocket or on his person, completes the offense to the same degree as if he had money or other personal property which could be the subject of larceny. (State v. Wilson, 30 Conn. 500; Commonwealth v. McDonald, 5 Cush. 365; People v. Jones, 46 Mich. 441; People v. Moran, 123 N. Y. 254.)
Having determined that appellant was guilty of an unlawful attempt to kill, was such attempt coupled i with the present ability to accomplish the deed ? In the case of People v. Yslas, 27 Cal. 633, this court said; “The common-law definition of an assault is substantially the same as that found in our statute.” Con*669ceding such, to be the fact, \we cannot indorse those authorities, principally English, which hold that an assault may be committed by a person pointing in a threatening manner an.unloaded gun at another; and this, too, regardless of the fact whether the party holding the gun thought it was loaded, or whether the party at whom it was menacingly pointed was thereby placed in great fear. Under our statute it cannot be said that a person with an unloaded gun would have the present ability to inflict an injury upon another many yards distant, however apparent and unlawful his attempt to do so might be. It was held in the case of State v. Bwails, 8 Ind. 722, that there was no assault to commit murder where A fires a gun at B at a distance of forty feet, with intent to murder him, if the gun is in fact loaded with powder and a slight cotton wad, although A believes it to be loaded with powder and ball. The later Indiana cases support this rule, although in Kinkle v. State, 32 Ind. 230, the court, in speaking of the SwaiPs case, said.-. “But if the case is to be understood as laying down the broad proposition that to constitute an assault o o . . with intent to commit felony the intent and the present ability to execute must necessarily be conjoined, it does not command our assent or approval.” In the face of the fact that the statute of this state in terms requires that in order to constitute an assault the unlawful attempt and present ability must be conjoined, Kinkle v. State, 32 Ind. 239, can have no weight here. In State v. Napper, 6 Nev. 115, the court reversed the judgment upon the ground that the people failed to prove that the pistol with which the assault was alleged to have been made was loaded, and that consequently there was no proof that the defendant had the present ability to inflict the injury.
It is not the purpose of the court to draw nice distinctions between an attempt to commit an offense and an assault with intent to commit the offense, for such distinctions could only have the effect to favor the escape of criminals from their just deservings. And in view of *670the fact that all assaults to commit felonies can be prosecuted as attempts, we can see no object in carrying the discussion of the subject tc- any greater lengths.
In this case the appellant had the present ability to inflict the- injury. He knew the officer wa.s upon the roof, and knowing that fact he fired through the roof with the full determination of killing him. The fact that he was mistaken in judgment as to the exact spot where his intended victim was located is immaterial. That the shot did not fulfill the mission intended was not attributable to forbearance or kindness of heart upon defendant’s part; neither did the officer escape by reason of the fact of his being so far distant that the deadly missile could do him no harm. He was sufficiently near to be killed from a bullet from the pistol, and his antagonist fired with the intent of killing him. Appellant’s mistake as to the policeman’s exact location upon the roof affords no excuse for his act, and causes the act to be no less an assault. These acts disclose an assault to murder as fully as though a person should fire into a house with the intention of killing the occupant, who fortunately escaped the range of the bullet. (See Cowley v. State, 10 Lea, 282.) The fact that the shots were directed indiscriminately into the house, rather than that the intended murderer calculated that the occupant was located at a particular spot, and then trained his fire to that point, could not affect the question. The assault would be complete and entire in either case. If a man intending murder, being in darkness and guided by sound only, should fire, and the bullet should pierce the spot where the party was supposed to be, but by a mistake in hearing the intended victim was not at the point of danger, but some distance therefrom, and yet within reach of the pistol-ball, the crime of assault to commit murder would be made out; for the unlawful attempt and the present ability are found coupled together. If appellant’s aim had not been good, or if through fright or accident when pointing the weapon or pulling the trigger, or if the ball had been deflected in its course *671from the intended point of attack, and hy reason of the occurrence of any one of these contingencies the party had been shot and killed, a murder would have been committed. Such being the fact, the assault is established.
The fact of itself that the policeman was two feet or ten feet from the spot where the fire was directed, or that he was at the right hand or at the left hand or behind the defendant at the time the shot was fired, is immaterial upon this question. That element of the case does not go to the question of present ability, but pertains to the unlawful attempt.
Let the judgment and order be affirmed.
Paterson, J., concurred.