In what circumstances will a defendant be found guilty of an assault with intent to kill if a police officer was on duty at the scene of the shooting?

"Thus, in People v. Lee Kong (1892) 95 C. 666, 30 P. 800, a policeman bored a hole through the roof of defendant's building to observe defendant's lottery game. Defendant learned of this, waited one night until he thought the policeman was at his post, and fired through the hole. The officer was at the time on another part of the roof. Held, defendant was guilty either of an assault with intent to kill, or an attempt. (95 C. 688.)"