MR. JUSTICE METCALF:
Harry Moore lived on a farm three and a half miles southeast of Laurel, Montana. On the evening of November 26, 1951, he was at home with his wife, his little boy, and two of his daughters, Margaret and Sheryl. Mr. Moore went to bed that evening about 8:00 p. m. Later, at about 9:00, Moore was awakened by Sheryl who said to her father, “Some boys are out there.” Mr. Moore went to the door where he saw three boys and a short distance away in the shadows were another group of boys. One of the boys at the door asked, “Is Margaret there?” Moore ordered them off the place and told them to “shut the gate behind them.” The boys went away. They returned a short time later and threw rocks at Moore’s house, knocking off paint and breaking two windows. Moore again went to the door and said, “I’m going to have you arrested for this.” The response he received out of the darkness was, “By God, you son of a bitch, you, we’ll get you.” The attackers then left.
Forty-five minutes to an hour later Moore saw car lights coming up the lane toward his house. Fearing further trouble Moore got a battered old .12 gauge shotgun and stepped outside where he stationed himself behind a tree near the house. The car stopped and within a few minutes a barrage of .22 bullets and shotgun pellets struck the house hitting the sides of the house, the chimney, breaking windows and penetrating the door. Moore returned the fire and after firing several shots at the assailants went back into the house for more shotgun shells. While the bombardment was going on Mrs. Moore and the children took refuge in a root cellar behind the house. After [220]*220Mr. Moore had obtained more ammunition he took a position behind the root cellar and again fired and the boys left.
Margaret and her brother stayed in the root cellar for about half an hour and then went to a neighbor’s house a half mile away for aid. The neighbors had no phone but took Margaret and her brother to Laurel to the police station where they reported the shooting. The policeman in charge called the sheriff’s office and then drove Margaret and her brother back to the Moore house. Shortly thereafter a deputy sheriff from the sheriff’s office arrived and took charge of the investigation.
Margaret was able to identify one of the boys involved and heard another addressed as Wally. It was established that the defendant was nicknamed Wally and was commonly known by that name. The following day a detective from the Billings police department interrogated the defendant in the presence of the deputy sheriff and Mr. and Mrs. Simon. There was also another boy present who had participated in the alleged assault. The defendant admitted that he had been at the Moore farm at Laurel when the incident occurred and that he had fired a gun in the direction of the Moore home. Later, on cross-examination at the trial, it was developed that the defendant had never told the officers what kind of a gun he had fired or where he stood at the time he was firing toward the Moore home.
Shells from a .16 gauge shotgun and a .20 gauge shotgun and from two .22 calibre rifles were found along the county road from which the firing came. These shells and cartridge cases were sent to the F. B. I. laboratory in Washington and ballistic experts examined them and at the trial identified them as having come from guns introduced into evidence which were found at the home of another one of the boys who was in the party.
The defendant was charged with assaulting Harry Moore by shooting “towards and in the direction of said Harry Moore with weapons likely to produce grievous bodily harm, to-wit: one .16 gauge shotgun, one .20 gauge shotgun and two .22 rifles,” in violation of R. C. M. 1947, see. 94-602, subd. 4.
The first information charged the defendant and three others [221]*221(the rest were prosecuted under juvenile laws) -and after each had demanded separate trials the first information was dismissed and a second information filed against the defendant alone. After trial the jury found the defendant guilty as charged. The defendant moved for acquittal at the conclusion of the state’s case and upon denial of that motion did not testify or submit any evidence upon his own behalf.
Eleven of the defendant’s specifications of error are concerned with the contention that there was a failure of proof of material allegations of the information and of essential elements of the crime. It was alleged by the state that the defendant was “shooting towards and in the direction of one Harry Moore with weapons likely to produce grievous bodily harm.” It is contended that the state failed to prove that the weapons used were likely to produce grievous bodily harm and connect the defendant up with such weapons.
The deputy sheriff and the detective attached to the sheriff’s office testified that they found shotgun shell casings and .22 shells along the county road up which the assailants came. The evidence was that these shells were found at a distance of from 235 to 260 feet from the place where Mr. Moore was concealed behind a tree. Ballistic experts testified as to the force and effect of a shotgun at different distances and these experts testified that at the distance at which the shots were fired about 8 percent of the load of a shotgun would reach the target. That is, out of a normal load of 170 to 190 pellets, about 15 of the pellets would reach the target.
Defendant offered instructions that “whether the defendant was within shooting distance of Harry Moore is an element to be considered by you in determining whether a weapon was likely to produce grievous bodily harm;” that “assault is an unlawful attempt, coupled with a present ability to commit a violent injury upon the person of another;” and that unless the jury find “that the state has proved beyond a reasonable doubt that the defendant shot a weapon in a manner likely to produce grievous bodily harm,” the defendant must be acquitted.
[222]*222These instructions were refused. There was evidence in the record that shotgun pellets had hit the side of the house and some had imbedded themselves in the wood. A door was introduced in evidence in which pellets had imbedded themselves and which bore the marks of other bullets. One of the witnesses counted 24 of such marks. The door was located about 15 feet to the left and 5 feet behind the position originally taken by Mr. Moore. In addition it was unquestioned that the .22 rifles were fired at an effective range. Some of the rifles’ bullets penetrated the door and the windows and spent bullets were found inside the house.
It is the defendant’s.contention that the state must not only prove that the weapon could produce grievous bodily harm but that the probability was that it would produce grievous bodily harm, since the shotguns were fired at an extreme range there was no such probability and even though some of the loads might have reached the prosecutor and even have injured him, no prosecution would lie for assault under R. C. M. 1947, sec. 94-602, subd. 4. It is further contended that there is no showing that the .defendant fired any one of the four guns introduced in evidence or fired any gun other than a popgun or a squirtgun; that there is no connection between the defendant and the guns actually introduced; and that therefore an essential item of proof is missing.
Here there is no question that a group of boys came to Mr. Moore’s farm, threw rocks at his house, returned later and fired upon the house with shotguns and .22 rifles.
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MR. JUSTICE METCALF:
Harry Moore lived on a farm three and a half miles southeast of Laurel, Montana. On the evening of November 26, 1951, he was at home with his wife, his little boy, and two of his daughters, Margaret and Sheryl. Mr. Moore went to bed that evening about 8:00 p. m. Later, at about 9:00, Moore was awakened by Sheryl who said to her father, “Some boys are out there.” Mr. Moore went to the door where he saw three boys and a short distance away in the shadows were another group of boys. One of the boys at the door asked, “Is Margaret there?” Moore ordered them off the place and told them to “shut the gate behind them.” The boys went away. They returned a short time later and threw rocks at Moore’s house, knocking off paint and breaking two windows. Moore again went to the door and said, “I’m going to have you arrested for this.” The response he received out of the darkness was, “By God, you son of a bitch, you, we’ll get you.” The attackers then left.
Forty-five minutes to an hour later Moore saw car lights coming up the lane toward his house. Fearing further trouble Moore got a battered old .12 gauge shotgun and stepped outside where he stationed himself behind a tree near the house. The car stopped and within a few minutes a barrage of .22 bullets and shotgun pellets struck the house hitting the sides of the house, the chimney, breaking windows and penetrating the door. Moore returned the fire and after firing several shots at the assailants went back into the house for more shotgun shells. While the bombardment was going on Mrs. Moore and the children took refuge in a root cellar behind the house. After [220]*220Mr. Moore had obtained more ammunition he took a position behind the root cellar and again fired and the boys left.
Margaret and her brother stayed in the root cellar for about half an hour and then went to a neighbor’s house a half mile away for aid. The neighbors had no phone but took Margaret and her brother to Laurel to the police station where they reported the shooting. The policeman in charge called the sheriff’s office and then drove Margaret and her brother back to the Moore house. Shortly thereafter a deputy sheriff from the sheriff’s office arrived and took charge of the investigation.
Margaret was able to identify one of the boys involved and heard another addressed as Wally. It was established that the defendant was nicknamed Wally and was commonly known by that name. The following day a detective from the Billings police department interrogated the defendant in the presence of the deputy sheriff and Mr. and Mrs. Simon. There was also another boy present who had participated in the alleged assault. The defendant admitted that he had been at the Moore farm at Laurel when the incident occurred and that he had fired a gun in the direction of the Moore home. Later, on cross-examination at the trial, it was developed that the defendant had never told the officers what kind of a gun he had fired or where he stood at the time he was firing toward the Moore home.
Shells from a .16 gauge shotgun and a .20 gauge shotgun and from two .22 calibre rifles were found along the county road from which the firing came. These shells and cartridge cases were sent to the F. B. I. laboratory in Washington and ballistic experts examined them and at the trial identified them as having come from guns introduced into evidence which were found at the home of another one of the boys who was in the party.
The defendant was charged with assaulting Harry Moore by shooting “towards and in the direction of said Harry Moore with weapons likely to produce grievous bodily harm, to-wit: one .16 gauge shotgun, one .20 gauge shotgun and two .22 rifles,” in violation of R. C. M. 1947, see. 94-602, subd. 4.
The first information charged the defendant and three others [221]*221(the rest were prosecuted under juvenile laws) -and after each had demanded separate trials the first information was dismissed and a second information filed against the defendant alone. After trial the jury found the defendant guilty as charged. The defendant moved for acquittal at the conclusion of the state’s case and upon denial of that motion did not testify or submit any evidence upon his own behalf.
Eleven of the defendant’s specifications of error are concerned with the contention that there was a failure of proof of material allegations of the information and of essential elements of the crime. It was alleged by the state that the defendant was “shooting towards and in the direction of one Harry Moore with weapons likely to produce grievous bodily harm.” It is contended that the state failed to prove that the weapons used were likely to produce grievous bodily harm and connect the defendant up with such weapons.
The deputy sheriff and the detective attached to the sheriff’s office testified that they found shotgun shell casings and .22 shells along the county road up which the assailants came. The evidence was that these shells were found at a distance of from 235 to 260 feet from the place where Mr. Moore was concealed behind a tree. Ballistic experts testified as to the force and effect of a shotgun at different distances and these experts testified that at the distance at which the shots were fired about 8 percent of the load of a shotgun would reach the target. That is, out of a normal load of 170 to 190 pellets, about 15 of the pellets would reach the target.
Defendant offered instructions that “whether the defendant was within shooting distance of Harry Moore is an element to be considered by you in determining whether a weapon was likely to produce grievous bodily harm;” that “assault is an unlawful attempt, coupled with a present ability to commit a violent injury upon the person of another;” and that unless the jury find “that the state has proved beyond a reasonable doubt that the defendant shot a weapon in a manner likely to produce grievous bodily harm,” the defendant must be acquitted.
[222]*222These instructions were refused. There was evidence in the record that shotgun pellets had hit the side of the house and some had imbedded themselves in the wood. A door was introduced in evidence in which pellets had imbedded themselves and which bore the marks of other bullets. One of the witnesses counted 24 of such marks. The door was located about 15 feet to the left and 5 feet behind the position originally taken by Mr. Moore. In addition it was unquestioned that the .22 rifles were fired at an effective range. Some of the rifles’ bullets penetrated the door and the windows and spent bullets were found inside the house.
It is the defendant’s.contention that the state must not only prove that the weapon could produce grievous bodily harm but that the probability was that it would produce grievous bodily harm, since the shotguns were fired at an extreme range there was no such probability and even though some of the loads might have reached the prosecutor and even have injured him, no prosecution would lie for assault under R. C. M. 1947, sec. 94-602, subd. 4. It is further contended that there is no showing that the .defendant fired any one of the four guns introduced in evidence or fired any gun other than a popgun or a squirtgun; that there is no connection between the defendant and the guns actually introduced; and that therefore an essential item of proof is missing.
Here there is no question that a group of boys came to Mr. Moore’s farm, threw rocks at his house, returned later and fired upon the house with shotguns and .22 rifles. Admittedly the defendant was one of the party that came to the house and participated in the barrage. He said he fired a gun. Whether the shotguns were fired at extreme range or not, some of the pellets of the shotgun load hit the house with force sufficient to imbed themselves in the wood. And Mr. Moore was put in fear — he was asked: “Q. Mr. Moore, at the time of this shooting tell the jury whether or not you were frigthened. A. Frightened ? After I got in the house I could not sit still aloné. I was plumb exhausted and seared to death.” Nor can there be any [223]*223doubt that the weapons used were deadly weapons. Whether or not a shotgun or a rifle fired at such a rangé that it would be impossible to inflict an injury would be an assault with a deadly weapon is not necessary to be determined here. See 4' Am. Jur., Assault & Battery, see. 17, p. 137. Here the range was such that there was a possibility of injury and a capability of injuring á person struck either by the load of the shotgun or by the projectiles of the .22. Under such cricumstances shotguns and rifles used as firearms are deadly weapons per se. 6 C. J. S., Assault & Battery, sec. 77, p. 935. The use of such deadly or dangerous weapons infers an intent to injure so that no specific intent need be shown. 6 C. J. S., Assault & Battery, see. 77, p. 932.
The shotguns and the .22 rifles named in the indictment were introduced into evidence. They were identified by ballistic experts and were connected with the crime by expert testimony of members of the F. B. I. who testified that cartridges and shells found along the county road from which the shots were fired had been fired from the guns so introduced. The guns were found in the possession of one of the boys who participated in the shooting. The connection between the crime charged and the weapons was sufficient to warrant their admission in evidence under the rule laid down in State v. Allison, 122 Mont. 120, 199 Pac. (2d) 279, and cases therein cited. It is sufficient that the weapons or instruments sought to be introduced are connected prima facie with the defendant or his co-actors in the commission of the crime. 22 C. J. S., Criminal Law, sec. 712, p. 1209. See People v. Bundte, 87 Cal. App. (2d) 735, 197 Pac. (2d) 823, explaining and distinguishing People v. McCall, 10 Cal. App. (2d) 503, 52 Pac. (2d) 500, relied upon by the defendant.
The defendant also insists that the state failed to prove the allegation that the defendant shot “towards and in the direction of Harry Moore.” The state proved that at the time the shooting started Harry Moore was not in the house at all but had stationed himself 15 feet to the right of the house [224]*224which was the target for all of the shots. However, it is no defense that Mr. Moore had moved so that he was not in the line of fire. The evidence showed that there had been a threat to “get” Mr. Moore by someone in the party and the shots were directed into the house where Mr. Moore had been. The case is not analogous to Durham v. Commonwealth, 235 Ky. 366, 31 S. W. (2d) 603, where the only evidence was that shots had been fired and there was no evidence as to whether they had been directed at the prosecuting witness. In that case the court pointed out that under the testimony the gun could have been fired in the air or in the opposite direction and therefore the offense of shooting at the prosecuting witness was not proved.
But in the case at bar the shots were directed at the house and penetrated the windows and door into the room where Mr. Moore was most likely to be. This is like People v. Lee Kong, 95 Cal. 666, 30 Pac. 800, 17 L. R. A. 626, where a police officer had drilled a hole in the roof to attempt to learn whether the defendant was conducting a lottery in the room below. The defendant discovered the hole in the roof and fired his pistol at it. The policeman was not at his station at the time and was uninjured. This was held to be an assault upon the person even though the man who fired the shot was mistaken as to the exact location of his intended victim.
The same is true in the instant case where a threat had been made to “get” Mr. Moore and an attempt was made to carry out the threat by a night-time attack upon Moore’s house. The fact that Mr. Moore had moved to a position away from the line of fire and placed himself behind a tree did not prevent the attack from being an assault upon him and sustained the charge that the guns were fired toward him and in his direction. See 1 Wharton, Criminal Law, 12th Ed., sec. 804, p. 1101; 4 Am. Jur., Assault & Battery, sec. 16, p. 136.
Under the Montana statute all participants in a crime are equally liable as principals. R. C. M. 1947, sec. 94-204, says: “All persons concerned in the commission of a crime, whether it be a felony or misdemeanor, and whether they directly commit [225]*225the act constituting the offense, or aid and abet in its commission * * * are principals in any crime so committed.”
And R. C. M. 1947, sec. 94-6423, declares: “The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, must be prosecuted, tried, and punished as principals, and no other facts need be alleged in any indictment or information against such an accessory, than are required in an indictment or information against his principal.”
At common law the actual actor or perpetrator of a crime was charged as the principal in the first degree and one who was present and aided and abetted in a crime was the principal in the second degree. These distinctions have been eliminated in our Code. Under the sections quoted it is immaterial whether the proof shows that the accused actually was the perpetrator of the offense or whether he aided and abetted. In either case he is a principal and may be tried and convicted as such. It is not necessary that the state prove which of the four guns that were introduced into evidence was fired by the defendant. It is not necessary to show whether he fired any one of the four guns. He was present at the scene of the crime and was admittedly a participant therein. While mere presence at the scene of the crime does not involve a complicity in the crime, in addition to the defendant’s mere presence there was evidence that he was a member of the party that first came to the house; that he went with the party to obtain the weapons and returned and fired a gun in concert with the other assailants.
The defendant cites conspiracy cases to show that the state has not carried out its burden of proof. Conspiracy is a distinct crime under Montana statutes. See R. C. M. 1947, sec. 94-1101. But defendant was not charged with conspiracy and those special cases dealing with that crime are not in point.
Lastly the defendant complains that the ease was permitted [226]*226to go to the jury upon circumstantial evidence, buttressed only by his admission that he was present and fired a gun. Here the evidence is more than circumstantial. As narrated above, these facts made a prima facie case to go to the jury and sustain the jury’s verdict.
Finding no reversible error the judgment is affirmed.
MR. CHIEF JUSTICE ADAIR, and ASSOCIATE JUSTICES BOTTOMLT and ANGSTMAN, concur.