Assault consists of either:

A. an attempt to commit a battery upon the person of another;

B. any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery; or

C. the use of insulting language toward another impugning his honor, delicacy or reputation.

Whoever commits assault is guilty of a petty misdemeanor.

History: 1953 Comp., § 40A-3-1, enacted by Laws 1963, ch. 303, § 3-1.

Cross references. — For assault and battery upon revenue division employees, see 7-1-75 NMSA 1978.

For assault by prisoner, see 30-22-17 NMSA 1978.

For assaults upon peace officers, see 30-22-21 to 30-22-26 NMSA 1978.

Requisites of assault. — An assault under New Mexico law requires an act, threat or menacing contact, which causes the plaintiff to reasonably believe she is in danger of receiving an immediate battery. Chavez v. Thomas & Betts, Corp., 396 F.3d 1088 (10th Cir. 2005).

Specific intent is not an essential element of aggravated assault. — Where defendant was charged with aggravated assault with a deadly weapon, and where the state presented evidence at trial that the victim of the assault was standing next to the shooting victim when the shooting occurred and that the assault victim reasonably believed that she was also going to be shot, and where the jury was properly instructed on general criminal intent, there was sufficient evidence to support defendant's conviction for aggravated assault with a deadly weapon. Specific intent is not an essential element of aggravated assault. State v. Branch, 2018-NMCA-031, replacing 2016-NMCA-071, 387 P.3d 250, cert. denied.

Sufficient evidence of aggravated assault. — Where defendant was charged with aggravated assault with a deadly weapon, the evidence that the victim of the assault was standing right next to the shooting victim when the shooting occurred, that the assault victim believed that she was also going to be shot, and where the jury was properly instructed on general criminal intent, there was sufficient evidence to support defendant's conviction for aggravated assault with a deadly weapon. State v. Branch, 2016-NMCA-071, 387 P.3d 250, replaced by 2018-NMCA-031, and cert. quashed.

Constitutional infirmity in Subsection C may exist insofar as first and fourteenth amendment rights are concerned. State v. Parrillo, 1979-NMCA-135, 94 N.M. 98, 607 P.2d 636, cert. denied, 94 N.M. 629, 614 P.2d 546.

Insulting language. — Language that meant "follow the road, don't go" did not, as a matter of law, tend toward impugning the honor, delicacy or reputation of another. State v. Vasquez, 1971-NMCA-182, 83 N.M. 388, 492 P.2d 1005.

Requisites of assault. — For there to have been an assault upon a victim, there must have been an act, threat or conduct which caused him to reasonably believe he was in danger of receiving an immediate battery. State v. Mata, 1974-NMCA-067, 86 N.M. 548, 525 P.2d 908, cert. denied, 86 N.M. 528, 525 P.2d 888.

Batteries do not include assault. — While assault and battery are closely related, one may exist without the other. All batteries do not include an assault. For there to be an assault, there must have been an act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery. Baca v. Velez, 1992-NMCA-053, 114 N.M. 13, 833 P.2d 1194, cert. denied, 113 N.M. 636, 830 P.2d 553.

Evidence of victim's apprehension. — Where there was no direct evidence of an alleged victim's belief that he was in danger of receiving an immediate battery, the evidence was insufficient to show that any assault had been committed. State v. Mata, 1974-NMCA-067, 86 N.M. 548, 525 P.2d 908, cert. denied, 86 N.M. 528, 525 P.2d 888.

Improperly admitted evidence of menacing conduct not unfairly prejudicial. — Where defendant was improperly charged and convicted of aggravated assault with a deadly weapon along with tampering with evidence, and the district court admitted evidence that defendant stated that he robbed the neighborhood in the course of the overall incident at issue, the admission of defendant's statement was not unfairly prejudicial because although the evidence related to defendant's menacing conduct, which related solely to the improperly charged, assault-based offense, the testimony about defendant's statement that he robbed the neighborhood was elicited from the victim, not law enforcement, was offered in the context of other blustering comments from defendant, defendant makes no showing that the state placed emphasis on the statement, there was no indication that the state attempted to relate the statement to the conduct that supported defendant's conviction for tampering, and there was other sufficient evidence to supporting defendant's conviction for tampering with evidence. State v. Radosevich, 2016-NMCA-060, 376 P.3d 871, rev'd on other grounds, 2018-NMSC-028.

Definition mandatory part of instructions. — The definition of assault found in this section contains essential elements of the crime of which defendant was convicted, assault with intent to commit a violent felony, and hence, failure to instruct on the definition of assault constituted jurisdictional error. State v. Jones, 1973-NMCA-107, 85 N.M. 426, 512 P.2d 1262.

Instruction on assault as lesser included offense. — In trial of Indian for rape under the federal Major Crimes Act (18 U.S.C. §§ 1153, 3242, conferring federal jurisdiction over certain enumerated major crimes committed by Indians on Indian reservations), it was reversible error for trial court to refuse to instruct on the nonenumerated offenses of attempted rape, simple assault and battery, all of which were lesser included offenses under New Mexico law. Joe v. United States, 510 F.2d 1038 (10th Cir. 1974).

Law reviews. — For article, "The Proposed New Mexico Criminal Code," see 1 Nat. Resources J. 122 (1961).

For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63 (1974).

For note, "Municipal Assumption of Tort Liability for Damage Caused by Police Officers," see 1 N.M.L. Rev. 263 (1971).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 6 Am. Jur. 2d Assault and Battery §§ 8 to 36.

Indecent proposal to woman as assault, 12 A.L.R.2d 971.

Homicide: acquittal on homicide charge as bar to subsequent prosecution for assault and battery or vice versa, 37 A.L.R.2d 1068.

Motor vehicle: criminal responsibility for assault and battery by operation of mechanically defective motor vehicle, 88 A.L.R.2d 1165.

Criminal liability for excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis, 89 A.L.R.2d 396.

Deadly or dangerous weapon, intent to do serious harm as essential to crime of assault with, 92 A.L.R.2d 635.

Unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.

Automobile as dangerous or deadly weapon within meaning of assault or battery statute, 89 A.L.R.3d 1026.

Admissibility of evidence of character or reputation of party in civil action for assault on issues other than impeachment, 91 A.L.R.3d 718.

Criminal liability as barring or mitigating recovery of punitive damages, 98 A.L.R.3d 870.

Single act affecting multiple victims as constituting multiple assaults or homicides, 8 A.L.R.4th 960.

Civil liability for insulting or abusive language - modern status, 20 A.L.R.4th 773.

Sufficiency of evidence to establish criminal participation by individual involved in gang fight or assault, 24 A.L.R.4th 243.

Liability of hotel or motel operator for injury to guest resulting from assault by third party, 28 A.L.R.4th 80.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

Standard for determination of reasonableness of criminal defendant's belief, for purposes of self-defense claim, that physical force is necessary - modern cases, 73 A.L.R.4th 993.

Franchisor's tort liability for injuries allegedly caused by assault or other criminal activity on or near franchise premises, 2 A.L.R.5th 369.

Transmission or risk of transmission of human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS) as basis for prosecution or sentencing in criminal or military discipline case, 13 A.L.R.5th 628.

Admissibility of threats to defendant made by third parties to support claim of self-defense in criminal prosecution for assault or homicide, 55 A.L.R.5th 449.

Attempt to commit assault as criminal offense, 93 A.L.R.5th 683.

Effect of federal assault statute (18 USCS § 113) on prosecutions under Assimilative Crimes Act (18 USCS § 13) making state criminal laws applicable to acts committed on federal reservations, 57 A.L.R. Fed. 957.

6A C.J.S. Assault and Battery § 64.