The state charged the defendant, John Wesley Warden, with the crime of assault with intent to murder for the alleged intentional shooting of Earl Huff with a handgun. The defendant was arrested in the late evening hours of October 24 or the early morning hours of October 25, 1976. At the preliminary hearing on November 3, 1976, the magistrate bound the defendant over to district court to stand trial for the crime charged. At the trial, the jury found the defendant guilty of the crime charged, and the judge sentenced the defendant to the State Board of Correction for a term not to exceed 14 years.
At trial the state based its case principally on the testimony of the victim, Earl Huff. It was his testimony that at approximately 11:15 p. m. on October 24, 1976, he in his capacity as a security officer for Wicks Corporation in Grangeville, Idaho observed a Dodge van parked on the company’s property. From his patrol vehicle Huff noticed some movement in the back of the van. In order to determine if anyone was in the van, he shined the spotlight connected to his patrol vehicle into the van, got out of his vehicle and approached the windshield on the driver’s side of the van. At that point he observed a man coming from the back of the van towards the front of the van with a gun in his hand. Within two or three seconds, despite Huff’s effort to indicate that he was unarmed, the man shot Huff from- inside the' van, wounding him in the neck and knocking him to the ground. The man then got out of the van, walked, over to where Huff was lying, looked at him, turned around, walked back to the van and drove off.
Huff was able to recognize the man well enough to describe him to the police as his assailant. Later that night the Grangeville police together with the Idaho County Sheriff’s Office apprehended the defendant Warden based on Huff’s description. A few days later while Huff was recovering in a Lewiston hospital, he identified the defendant’s picture as that of his assailant.
The state presented evidence of the neutron activation analysis performed on the defendant’s hands soon after his arrest. The results of that analysis indicated that the defendant had fired a handgun not more than two hours before the time of the analysis and that when the defendant fired the gun, he had both hands on the grip of the gun. The state also put various members of the Grangeville Police Department and the Idaho County Sheriff’s Office on the stand and elicited testimony with respect to the investigation of the shooting, the arrest of the defendant, the impounding of the defendant’s vehicle and the release of that vehicle.
*23The defendant based his case on his own account of the events leading up to and following the shooting of Huff as corroborated in various respects by his brother, Danny Warden, and the woman who was in the van when the shooting occurred. It was defendant’s testimony at trial that at the time Huff drove up to the van that he and the woman were having sexual intercourse in the back of the van. He stated that he was interrupted in his activities by Huff’s floodlight shining through the front of the van, at which point he arose and, with his pants around his ankles, started towards the front of the van. Defendant testified that he stooped to pick up his .38 Smith and Wesson handgun which had fallen on the floor from a cabinet in the van; he stumbled; and the gun discharged. Because of the spotlight shining into the van, he testified that he could not see beyond a certain point in the van. when the gun discharged.
Defendant further testified that he then exited the van and approached the victim to offer assistance. He returned to the van and drove it out of the area and down the county road. When he returned to the scene of the shooting later, the victim was gone. He testified that he again drove away to a point about one and one half miles from the scene where he kicked out the windshield on the driver’s side of the van and threw his .38 handgun into a plowed field. The police stopped him a short time later.
On appeal, defendant raises four assignments of error: (1) the evidence presented at trial was insufficient to sustain the verdict of guilty for assault with intent to murder; (2) three specific items of evidence at trial were inadmissible; (3) the trial judge erred in not granting an advisory instruction to acquit; (4) the resulting sentence of a term not to exceed fourteen years was excessive and therefore an abuse of discretion.
Appellant first contends that the evidence was not sufficient to sustain the guilty verdict in that it failed to establish intent to murder. We hold that on the basis of the record in this case, the evidence does sustain a conviction on the charge of assault with intent to murder.
The function of an appellate court is to examine the record to determine if competent and substantial evidence exists to support the verdict. State v. Warden, 97 Idaho 752, 554 P.2d 684 (1976). Where there is such evidence, the verdict will not be disturbed on appeal. State v. Badger, 96 Idaho 168, 525 P.2d 363 (1974). Further, the court is not authorized to substitute its judgment as to the credibility of the witnesses and the weight to be given their testimony by the jury. State v. Buchanan, 73 Idaho 365, 252 P.2d 524 (1953).
The victim, Mr. Huff, testified that he parked his Ford Courier five to six feet from the front and to the left facing the van; that he turned on the floodlight which was located on top of his Courier directing it at an angle toward the front of the van; that he got out of his side of the Ford Courier, crossed in front and between the two vehicles to the driver’s side of the van, thus silhouetting himself; that as he approached the front of the van to inform anyone inside that they were on private property, a man came from the back of the van between the front seats with a gun in his right hand up by his ear. Huff stated that at that point he waved both of his hands to show that he was unarmed. But, within seconds, the man lowered the gun and shot him. The impact of the shot knocked Huff on his back. Huff testified that at that point the defendant-appellant opened the door on the right side opposite the driver’s side of the van, walked out in front of the van over to within three feet of where he was lying, looked at him, pointed the gun at him, turned around, walked over to the opposite side of the van, got in and drove off.
Officer Schussler testified that when the Grangeville police later apprehended the defendant, the left front window of the defendant’s van was missing. Defendant testified that after he left the scene of the shooting, he kicked out the shattered windshield. He then took his handgun and *24threw it into a plowed field. The police never recovered the gun.
Officer Schussler also testified that he administered the neutron activation analysis to the defendant’s hands soon after he was brought to the police station to test for gunshot residue (barium antimony). The findings as testified to by Robert Kopek, a forensic scientist with the Bureau of Alcohol, Tobacco and Firearms of the United States Treasury Department, were that the back of defendant’s left thumb, the back of his left hand, the back of his right thumb and the back of his right hand contained gunshot residue in excess of seven or eight times the amount normally found on an individual’s hands when that individual discharges a weapon. Further, the gunshot residue found was in excess of over one thousand times the amount normally found on a person’s hands who had not fired a gun. Mr. Kopek specifically stated that the only conclusion he could reach from seeing the results of the analysis was that the defendant, at the time of the test, had in fact recently fired a handgun. Because of the high level of residue found, Kopek testified that in his opinion the defendant had fired the gun within two hours of the testing. Mr. Kopek’s opinion was that the high levels of residue found on the back of defendant’s hands and thumbs and the virtual lack of residue on his palms indicated without reservation that the defendant had made a two handed firing.
The argument that the state did not prove the defendant’s specific intent to murder ignores two well settled principles. First, the jury may find specific intent to murder either from direct or circumstantial evidence. State v. Buchanan, supra, citing State v. Minousis, 64 Utah 206, 228 P. 574 (1924). Secondly, they may also infer such intent from the acts and conduct of the accused, the nature of the weapon used by the defendant and the manner in which it was used, taken together with all other circumstances in the case. Id. More specifically the jury may infer the intent to murder where the defendant has unlawfully used a deadly weapon, provided he used it in a way indicating an intention to kill. Id. citing 40 C.J.S. Homicide § 79, p. 944. The question of whether or not the specific intent existed in the mind of the accused is a question of fact to be submitted to and determined by the jury from all the evidence in the case, both direct and circumstantial, and the inferences to be drawn from that evidence. Id.
The jury heard the testimony of the victim, Mr. Huff. They heard an expert testify that the results of the neutron activation analysis indicated without reservation that the defendant had made a two handed firing. They heard testimony (some of which was conflicting) as to the events after the shooting leading to defendant’s arrest. The jury saw the defendant on the stand and ■heard his version of the events surrounding the shooting. In our view the evidence presented and the inferences which the jury apparently drew from that evidence amply support a finding of specific intent to murder and the verdict of guilty for assault with intent to murder.
Appellant also argues that three specific items of evidence at trial were inadmissible. During the victim’s testimony about the events surrounding this shooting, he concluded, over objection, that the bullet which struck him came through the left front window of defendant’s van. Appellant bases his objection on the theory that the victim, Huff, could not make such a conclusion because he did not actually observe the bullet passing through the glass. In our view this evidence related to some of the detail surrounding the offense which assisted in explaining the nature of the crime. The victim testified that between the time he saw the man with the gun inside the van and the time he was shot, the windshield on the driver’s side of the van was between him and the gun. It is rather obviously a reasonable inference that the bullet passed through the windshield of the van prior to striking the victim. It was not error for the trial court to admit this testimony.
The appellant further contends that the trial judge erroneously admitted the *25state’s exhibit 3, a photograph of the crime scene, because the photograph was taken during the daytime while the crime occurred at night. When the trial judge admitted this photograph, he noted that by virtue of the defendant’s objection at that time, the jury was sufficiently informed of the fact that the exhibit was a daytime photograph. Further, the victim authenticated the photograph, testifying that it was a true and accurate representation of the crime scene. The photograph did not attempt to simulate or recreate a scene. It merely illustrated the area where the crime occurred, and it was admissible for the probative value it had in that respect. See State v. Wyman, 97 Idaho 486, 493, 547 P.2d 531 (1976).
Appellant also objects to the admission of certain testimony offered by the state to rebut the testimony of defense witness, Danny Warden, who testified on cross-examination that he had not expressed any surprise to the police when they informed him of the shooting. The police officer’s rebuttal testimony was as follows:
MR. ALBERS: What was said to Mr. Warden?
MR. METCALF: In words or substance by some of the officers he was asked where he had been and what he was doing and general interrogation questions about his activity. In words or substance it was brought out that Mr. Huff had been shot.
MR. ALBERS: What was his response to that?
MR. METCALF: Response directly to me by Mr. Danny Warden was, in words or substance he asked me, “Well do you think Wes is involved?” I said, “I don’t know right now but it kind of looks that way.” And his direct response to me was, “Oh my God, I hope not.”
The prosecution elicited this rebuttal testimony in an effort to impeach the credibility of Danny Warden by his prior inconsistent statement. As a result, it was incumbent upon the prosecution to lay a proper foundation prior to introducing this impeaching rebuttal testimony in compliance with I.C.R. 43(b)(8). That rule states:
A witness may also be impeached by evidence, that he has made, at other times, statements inconsistent with his present testimony; but before this can be done, the statements must be related to him, with the circumstances of times, places and persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. .
Our review of the record indicates that the prosecution failed to lay a proper foundation with the witness it sought to later impeach by a prior inconsistent statement. Even so the failure to lay a proper foundation here is harmless error within the meaning of I.C.R. 52.1 Danny Warden’s prior statement was irrelevant and collateral to the material issues of the case. See Bell’s Handbook of Evidence for the Idaho Lawyer, p. 45. Thus the trial court’s admission of the police officer’s rebuttal testimony did not affect any substantial rights of the defendant. Accord, State v. Wrenn, 99 Idaho 506, 584 P.2d 1231 (1978).
Appellant next contends that the trial court erred in not granting an advisory instruction to acquit pursuant to I.C. § 19-2123. It is well settled in Idaho that the granting or denying of an advisory instruction to acquit is within the discretion of the trial court. State v. Wozniak, 94 Idaho 312, 486 P.2d 1025 (1971). Such discretion will not be reversed on appeal unless a clear abuse of discretion is shown. Id. We find no abuse of discretion on the record before us.
Lastly, appellant contends that the resulting sentence of a term not to exceed fourteen years was excessive. The fourteen year sentence imposed on the defendant is the maximum sentence for assault to commit murder. I.C. § 18-4015. As in State v.
*26Adair, 99 Idaho 703, 587 P.2d 1238 (1978), we have carefully reviewed all the evidence pertaining to the facts and circumstances surrounding the crime and also the presentence investigation. Defendant, now forty-two years of age, was born and raised in Grangeville, Idaho. He was in the Army for two years and received an honorable discharge. He subsequently married, and at the time of the presentence report, he had seven children ranging in ages from eight to eighteen. Defendant completed ten years of school and obtained his G.E.D. in 1972. He has worked at various jobs from time to time as a mechanic, truck driver, or cook, either employed or self-employed, since 1957 up until the time of his arrest.
In the past, defendant has been charged with three misdemeanors: (1) disturbing the peace in 1956, which led to a fine of $60.50; (2) driving while intoxicated in 1970, which charge was never disposed of; and (3) in 1973, possession of marijuana with a suspended sentence and two years probation. We note in connection with the marijuana possession that the presentence report refers to a probation violation and revocation of probation in 1975. Defendant claims that the presentence report fails to take into account the fact that the conviction for possession was set aside on the stipulation of the Idaho Attorney General after his co-defendant, his brother, was successful in reversing the conviction on appeal in State v. Warden, supra.
Defendant’s record reveals no pattern or propensity for violence or recidivism, except possibly for the use of marijuana since as of October 1976 there was a federal charge for possession of marijuana with intent to distribute pending against him. There is no indication that he has had any psychological difficulties. However, while the above facts might suggest that Warden is not a serious threat to society, we cannot overlook the fact that he was tried and convicted for a very serious and violent crime. Based on the violence involved in the commission of the crime alone, we hold that the trial judge did not abuse his discretion in imposing upon the defendant the maximum sentence for assault with intent to murder.
Affirmed.
SHEPARD, C. J., and McFADDEN and BAKES, JJ., concur.. Rule 52. Harmless error. — Any error, defect, substantial rights shall be disregarded. irregularity or variance which does not affect