delivered the opinion of the court.

From a careful examination of this record, we think it plainly manifest that both the shots fired by Lott were fired when he did not see and could not have seen Dodge, because a sandhouse intervened between them. It being, therefore, impossible that he could have hit him, or seen Kim to fire at him, we cannot hold that he committed an assault with intent to kill and murder; and so, notwithstanding Lott’s bad conduct, the case is reversed and remanded.

Reversed.