In People v. Lee Kong (1892) 95 Cal. 666, 30 P. 800, a policeman bored a hole in the roof of the defendant's building so he could see if defendant was conducting a gambling or lottery game. The defendant learned about the observation point. One night the defendant believed that the officer was on his roof. He fired his pistol at the spot where the observation hole had been bored. The bullet passed through the roof at the point intended, but at the moment of the attack the officer had moved to another spot on the roof. The defendant was convicted of assault with intent to commit murder. ( Id. at p. 667.) The Supreme Court first determined that the defendant had the requisite intent to kill; it then examined whether the defendant had the present ability to accomplish the deed. The Supreme Court found that the defendant did have the present ability to commit the assault. "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." ( People v. Lee Kong, supra, 95 Cal. at p. 671.) Particularly pertinent to the question before this court is the following analysis. "In this case the appellant had the present ability to inflict the injury. He knew the officer was 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. Citation. 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." ( People v. Lee Kong, supra, 95 Cal. at p. 670.)