concurring.
I agree with the result reached by the majority opinion. I would justify the result by a rationale different from the rationale of the majority opinion which requires proof, at least circumstantially, of an intent to cause a battery in connection with the offense of assault with a dangerous or deadly weapon as proscribed by § 6-70B, W.S. I understand that this rationale depends upon the word, “assault” as used in § 6-70B, W.S., being assigned the definition attaching under § 6-67, W.S., where the crime of simple assault is defined. Certainly there is substantial precedent for that construction. See the cases cited in Annot., 92 A.L.R.2d 635 (1963). The rule, however, is not universal.
Although § 6-70B, W.S., was amended (in terms of the effective date) subsequent to the events leading to the charge in the instant case, I find evidence in that amendment that the legislature was not depending upon the simple assault statute in defining assault with a dangerous or deadly weapon. Pursuant to the amendment assault with a dangerous or deadly weapon can be committed with an unloaded firearm. That approach is not consistent with the requirement in § 6-67, W.S., that the perpetrator have the present ability to com*905mit a violent injury. Furthermore, the statute defining assault and battery with a dangerous or deadly weapon requires that the assault be accomplished maliciously. We have noted that the term “maliciously” embraces, amongst other things, the element of unlawful intent. Evanson v. State, Wyo., 546 P.2d 412 (1976); Elliott v. State, 47 Wyo. 36, 30 P.2d 791 (1934). I conclude that when the legislature incorporated the term “maliciously” in the statute the word connoted nothing more than unlawful intent or general intent. If the legislature intended to encompass a specific intent within the statute, it would have done so specifically.
I would resolve the instant case on the ground that the use of a deadly or dangerous weapon, which the jury undoubtedly found here, raises a presumption of malice sufficient to meet the elements of § 6-70B, W.S. Ballinger v. State, Wyo., 437 P.2d 305 (1968).
Alternatively, I would reach the same result by holding that assault with a dangerous or deadly weapon is not a specific intent crime, but requires only a general intent. Other courts have reached this result by reasoning which strikes me as eminently sound noting in some instances that the gravamen of this offense is the nature of the weapon. Thompson v. State, Alas., 444 P.2d 171 (1968); People v. Rocha, 3 Cal.3d 893, 92 Cal.Rptr. 172, 479 P.2d 372 (1971); Parker v. United States, 123 U.S. App.D.C. 343, 359 F.2d 1009 (1966); People v. Rohr, 45 Mich.App. 535, 206 N.W.2d 788 (1973); Goswick v. State, Fla., 143 So.2d 817 (1962); State v. Anania, Me., 340 A.2d 207 (1975). A conclusion that only a general intent is required for the violation of § 6-70B, W.S., would require only a conclusion by the jury that the defendant intentionally used the firearm, and that the firearm was a deadly and dangerous weapon. The verdict returned encompasses those facts.