A. Assault with intent to commit a violent felony upon a peace officer consists of any person assaulting a peace officer while he is in the lawful discharge of his duties with intent to kill the peace officer.
B. Whoever commits assault with intent to commit a violent felony upon a peace officer is guilty of a second degree felony.
History: 1953 Comp., § 40A-22-22, enacted by Laws 1971, ch. 265, § 3.
ANNOTATIONSCross references. — For assault with intent to commit a violent felony, generally, see 30-3-3 NMSA 1978.
For instruction on justifiable homicide, see UJI 14-5171 NMRA.
For instruction on self-defense, see UJI 14-5181 NMRA.
Sufficient evidence. — Where the defendant rapidly accelerated his vehicle toward the police officer who had been pursuing him in a high speed chase after the officer got out of his car and the defendant pointed a rifle or a shotgun at the officer after the defendant had already fired three shots at the officer, the evidence was sufficient to sustain the court's finding that the defendant committed an assault with intent to commit a violent felony upon a peace officer. State v. Demongey, 2008-NMCA-066, 144 N.M. 333, 187 P.3d 679, cert. quashed, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.
Insufficient evidence of assault with intent to commit a violent felony upon a peace officer. — Where, during a law enforcement officer's attempt to arrest defendant pursuant to a warrant, defendant first attempted to flee, and upon being tackled by the officer, defendant shot the officer in the leg and took off running, and where the officer testified at trial that prior to the shooting, it was very dark and it was very difficult for him to see because he did not have a flashlight and there was no outdoor lighting nearby, that once he was shot, defendant took off running, that he could not see defendant, that he did not know where defendant was, and that he figured defendant was going to try and kill him, there was insufficient evidence to support defendant's conviction for assault with intent to commit a violent felony upon a peace officer, because there was no evidence proving defendant's menacing conduct or an explicit or implied threat of further violence; the evidence presented merely allowed the jury to speculate, rather than infer, that defendant separately acted in a manner that caused the officer reasonable fear of an immediate battery after he was shot by defendant. State v. Baca, 2020-NMCA-049.
Standing to challenge section's validity. — Where defendant was convicted of committing aggravated battery upon peace officer (30-22-25 NMSA 1978), a lesser included offense of this section, defendant's rights under this section were not at issue, despite the fact that it had been charged in the indictment, and he had no standing to challenge its constitutionality. State v. Bojorquez, 1975-NMCA-075, 88 N.M. 154, 538 P.2d 796, cert. denied, 88 N.M. 318, 540 P.2d 248.
Acts constituting one offense. — An assault arising from a series of three successive shots fired at a single victim, not separated by a significant amount of time, and arising from a single, continuous intent constituted one offense, and conviction of the defendant on two counts of assault violated his double jeopardy rights. State v. Handa, 1995-NMCA-042, 120 N.M. 38, 897 P.2d 225, cert. denied, 119 N.M. 771, 895 P.2d 671.
Lawful discharge of duties jury question. — Whether police officers were in the lawful discharge of their duties when they were shot by the defendant is a question for the jury to decide. State v. Brown, 1979-NMCA-038, 93 N.M. 236, 599 P.2d 389, cert. quashed, 93 N.M. 172, 598 P.2d 215, and cert. denied, 444 U.S. 1084, 100 S. Ct. 1041, 62 L. Ed. 2d 769 (1980).
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. — Malice or intent to kill where killing is by blow without weapon, 22 A.L.R.2d 854.
Homicide: acquittal on homicide charge as bar to subsequent prosecution for assault and battery or vice versa, 37 A.L.R.2d 1068.