Assault with intent to commit a violent felony consists of any person assaulting another with intent to kill or commit any murder, mayhem, criminal sexual penetration in the first, second or third degree, robbery or burglary.

Whoever commits assault with intent to commit a violent felony is guilty of a third degree felony.

History: 1953 Comp., § 40A-3-3, enacted by Laws 1963, ch. 303, § 3-3; 1977, ch. 193, § 2.

Cross references. — For offense of murder, see 30-2-1 NMSA 1978.

For offense of criminal sexual penetration, see 30-9-11 NMSA 1978.

For offenses of robbery and burglary, see 30-16-2 and 30-16-3 NMSA 1978.

For assault with intent to commit violent felony upon peace officer, see 30-22-23 NMSA 1978.

No double jeopardy bar to punishment. — There was no double jeopardy bar to punishment for the offenses of assault with intent to commit rape and criminal sexual penetration, where the victim testified at trial that defendant bound her to a bed, struck her several times, and threatened her verbally for a period of time before commencing the sexual assault. Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223.

Essential elements of offense. — Essential elements and ingredients of assault with intent to murder were willfully and unlawfully to assault a person with intent to murder such person, so that intent was an essential ingredient of the crime. Territory v. Baca, 1903-NMSC-001, 11 N.M. 559, 71 P. 460.

Aggravated assault not lesser included offense. — Assault with intent to kill can be committed without use of a deadly weapon; thus, aggravated assault with a deadly weapon was not a lesser included offense. State v. Patterson, 1977-NMCA-084, 90 N.M. 735, 568 P.2d 261.

No merger with aggravated battery. — The double jeopardy clause does not prohibit sentencing for both assault with intent to commit a violent felony murder and for aggravated battery with a deadly weapon; one offense does not subsume the other and other indicia of legislative intent suggests an intent to punish separately. State v. Cowden, 1996-NMCA-051, 121 N.M. 703, 917 P.2d 972, cert. denied, 121 N.M. 644, 916 P.2d 844.

No merger with kidnapping conviction. — Merger of kidnapping and assault with intent to commit criminal sexual penetration convictions was not required by double jeopardy considerations where there was evidence apart from the defendant's subsequent sexual assault from which the jury could infer that the defendant restrained the victim with the intent of holding her for services and where, under the facts, the assault with intent to commit criminal sexual penetration occurred after the victim had been restrained and held for services. State v. Williams, 1986-NMCA-122, 105 N.M. 214, 730 P.2d 1196, cert. denied, 105 N.M. 111, 729 P.2d 1365.

No merger with shooting at an inhabited dwelling. — This section and Section 30-3-8 NMSA 1978 (shooting at an inhabited dwelling) are two sections directed toward the protection of different social norms and indicate an intention on the part of the legislature to allow for multiple punishment for the same conduct. The legislature was concerned with conduct typically designed to terrorize or intimidate in 30-3-8 NMSA 1978. In contrast, this section is directed toward conduct which is motivated by an intention to effect another's death. State v. Highfield, 1992-NMCA-020, 113 N.M. 606, 830 P.2d 158, cert. denied, 113 N.M. 503, 828 P.2d 415.

Double jeopardy not found. — Convictions for accessory to assault with intent to commit a violent felony, accessory to aggravated battery with great bodily harm, and accessory to false imprisonment did not violate the constitutional prohibition against double jeopardy. State v. Carrasco, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075.

Collateral estoppel not applicable to facts. — Acquittal of defendant on charge of assault on a jail did not collaterally estop state from bringing subsequent prosecution against him on charge of assault with intent to commit a violent felony, even where both offenses allegedly occurred at same time and place, since charge of assault with intent to commit a violent felony required a jury to consider facts not required in the first trial. State v. Tijerina, 1973-NMSC-105, 86 N.M. 31, 519 P.2d 127, cert. denied, 417 U.S. 956, 94 S. Ct. 3085, 41 L. Ed. 2d 674 (1974).

Justification insufficient. — An attempt to recover property in the absence of a threatened trespass to one's habitation did not justify an attempt to take the life of a trespasser. State v. Waggoner, 1946-NMSC-001, 49 N.M. 399, 165 P.2d 122.

Manner and means of assault to be charged. — Indictment for assault with intent to commit murder must state the manner and means of the assault so far, at least, as to show that the crime would have been murder had not the acts stopped short of their full effect. Territory v. Carrera, 1892-NMSC-023, 6 N.M. 594, 30 P. 872; Territory v. Sevailles, 1855-NMSC-001, 1 N.M. 119.

Averment of use of deadly weapon. — An indictment for an assault with intent to kill was insufficient unless it averred that the assault was committed with a deadly weapon and with every ingredient necessary to have constituted the crime of murder if death had ensued. Territory v. Sevailles, 1855-NMSC-001, 1 N.M. 119.

Knife as deadly weapon. — An indictment averring an assault with a knife with intent to kill was sufficient, although not stating the knife to be a deadly weapon. Territory v. Sevailles, 1855-NMSC-001, 1 N.M. 119.

Conviction under section other than that charged. — Under count charging assault with intent to murder, alleging essentials of assault with deadly weapon, defendant could not be convicted of latter offense. State v. Taylor, 1927-NMSC-081, 33 N.M. 35, 261 P. 808.

Evidence of victim's character. — Absent any claim of self-defense, the victim's asserted character traits were not essential elements of the defense in a prosecution for assault with intent to commit a violent felony and were not provable by specific acts of conduct, but were only provable by reputation or opinion evidence. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, cert. denied, 90 N.M. 254, 561 P.2d 1347.

Evidence of other crime. — In prosecution for assault with pistol with intent to kill, where there was some evidence that accused intended to kill the prosecuting witness as a "stool pigeon," it was not error to permit inquiry, on cross-examination of accused, whether he had not been indicted the day before the assault for a prohibition violation. State v. Solis, 1934-NMSC-077, 38 N.M. 538, 37 P.2d 539.

Statements of deceased victim as hearsay. — The oral statements of one who died after an assault with intent to kill and before trial were not admissible on a prosecution for the offense since they constituted hearsay and were incompetent and irrelevant. State v. Waggoner, 1946-NMSC-001, 49 N.M. 399, 165 P.2d 122.

Weight of defendant's statements of intent. — Statement by defendant that he wanted to indulge in a lascivious act other than intercourse upon the person of prosecutrix did not negative possible intent to compel sexual intercourse since jury might well have believed that defendant's announced intention was only preliminary to raping her. State v. Compos, 1952-NMSC-016, 56 N.M. 89, 240 P.2d 228.

Evidence sufficient to go to jury. — There was sufficient evidence to take case to jury where elements of unlawfulness, deliberateness and premeditated design together with an intent to take the life of the person assaulted were amply shown. State v. Waggoner, 1946-NMSC-001, 49 N.M. 399, 165 P.2d 122.

Instructions to contain definition of assault. — The definition of assault found in Section 30-3-1 NMSA 1978 contains essential elements of the crime of which defendant was convicted, assault with intent to commit a violent felony, and failure of the trial judge to define assault was jurisdictional error. State v. Jones, 1973-NMCA-107, 85 N.M. 426, 512 P.2d 1262.

Charge on right to defend property properly refused. — In prosecution for assault with intent to kill, trial court did not err in refusing an instruction that a person has a right to defend his property from trespass or larceny and that jury should acquit defendant if it found that he shot at prosecuting witness to stop him from removing defendant's property and such action was necessary to prevent it, where evidence did not show prosecuting witness was on land leased by defendant at time of assault and in light of instructions given. State v. Waggoner, 1946-NMSC-001, 49 N.M. 399, 165 P.2d 122.

Refusal to instruct not prejudicial. — Defendant was not prejudiced by refusal to give requested instruction on accidental discharge of gun, while not engaged in the commission of a felony, where the subject was adequately covered in the court's general charge. State v. Smith, 1947-NMSC-035, 51 N.M. 184, 181 P.2d 800.

Instruction improper. — Where defendant was convicted of assault with intent to commit a violent felony against the adult child of the victim whom defendant shot and killed; defendant fired shots into a house that was occupied by the victim's adult child and others; and the jury was instructed that for it to find defendant guilty of assault with intent to commit a violent felony on the victim's adult child, the jury had to find that defendant intended to kill the victim's child or any other person or commit murder or mayhem on the victim's adult child or any other person, the instruction misstated the law regarding assault with intent to commit a violent felony and because the jury instruction allowed the jury to convict defendant of assaulting the victim's adult child on the ground that defendant intended to commit a violent felony against the victim, not the victim's adult child, the jury may have convicted defendant of crime that did not exist. State v. Arrendondo, 2012-NMSC-013, 278 P.3d 517.

Where gun accidentally discharged while defendant was engaged in committing a felony or misdemeanor at the time of the homicide, an instruction which did not recognize defendant's liability to conviction was improper. State v. Smith, 1947-NMSC-035, 51 N.M. 184, 181 P.2d 800.

Informing jury of co-defendant's guilty plea deemed error. — The fact that a co-defendant has pled guilty to conspiracy to commit murder, presented to the jury in a case involving the defendant's conspiracy, does not come within Rule 803(22), N.M.R. Evid. (now Paragraph V of Rule 11-803 NMRA) is hearsay, and informing the jury of this guilty plea is error. State v. Urioste, 1980-NMCA-103, 94 N.M. 767, 617 P.2d 156, cert. denied, 94 N.M. 806, 617 P.2d 1321.

Sentence not excessive. — Where minimum sentence was less than a third of the maximum which could have been imposed for conviction of assault with intent to rape, sentence was not excessive, particularly in view of liberal policy of giving prisoners time off for good behavior, and liberal commutations. State v. Compos, 1952-NMSC-016, 56 N.M. 89, 240 P.2d 228.

Sentence improper. — Sentence of 7 to 15 years for convictions of assault with intent to kill and assault with a deadly weapon were not in accordance with the so-called indeterminate sentence law, former 41-17-1, 1953 Comp., which required a trial judge to sentence a person found guilty of an offense to the minimum and maximum provided by statute for the offense. State v. Romero, 1963-NMSC-168, 73 N.M. 109, 385 P.2d 967 (decided under prior law).

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

Am. Jur. 2d, A.L.R. and C.J.S. references. — 6 Am. Jur. 2d Assault and Battery §§ 48 to 55.

Assault with intent to kill in connection with the use of automobile for unlawful purpose or in violation of law, 99 A.L.R. 756.

Impotency as defense to charge of rape, attempt to rape or assault with intent to commit rape, 23 A.L.R.3d 1351.

What constitutes offense of "sexual battery," 87 A.L.R.3d 1250.

Robbery, attempted robbery, or assault to commit robbery, as affected by intent to collect or secure debt or claim, 88 A.L.R.3d 1309.

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.

Propriety of, or prejudicial effect of omitting or of giving, instruction to jury, in prosecution for rape or other sexual offense, as to ease of making or difficulty of defending against such a charge, 92 A.L.R.3d 866.

Modern status of admissibility, in forcible rape prosecution, of complainant's prior sexual acts, 94 A.L.R.3d 257.

Modern status of admissibility, in forcible rape prosecution, of complainant's general reputation for unchastity, 95 A.L.R.3d 1181.

Constitutionality of assault and battery laws limited to protection of females or which provide greater penalties for males than for females, 5 A.L.R.4th 708.

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

Criminal responsibility of husband for rape, or assault to commit rape, on wife, 24 A.L.R.4th 105.

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.

Liability of church or religious society for sexual misconduct of clergy, 5 A.L.R.5th 530.

6A C.J.S. Assault and Battery §§ 72, 75 to 81.