ASSAULT, BATTERY, OR ASSAULT AND BATTERY
WITH A DANGEROUS WEAPON BY USE
OF A FIREARM - ELEMENTS
No person may be convicted of assault/battery/(assault and battery) with a dangerous weapon by use of a firearm unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
First, (an assault)/(a battery)/(an assault and battery);
Second, upon another person;
Third, by shooting at another (with a firearm)/(with an air gun)/(conductive energy weapon)/(by any means);
Fourth, without justifiable or excusable cause;
Fifth, with intent to injure any person.
Statutory Authority: 21 O.S. Supp. 2006, § 645.
Section 645 of Title 21 forbids conduct which is among the lesser included offenses of section 652. Daniels v. State, 1978 OK CR 8, 574 P.2d 1050 ; Pettigrew v. State, 1967 OK CR 124, 430 P.2d 808 ; Tharpe v. State, 1961 OK CR 27, 358 P.2d 232 . The principal distinguishing factor between the two statutes is the mental state of the defendant. Section 652 requires proof that the defendant specifically intended death as a result of his assault and battery, whereas section 645 requires proof that the defendant contemplated bodily harm or injury to his victim, but not necessarily death. Meggett v. State, 1979 OK CR 89, 599 P.2d 1110 ; Davis v. State, 1960 OK CR 6, 354 P.2d 466 .
An assault or battery with a gun or other dangerous weapon is culpable where it is perpetrated without legal justification or excuse. Lane v. State, 1938 OK CR, 65 Okl. Cr. 192, 84 P.2d 807 ; cf. Terhune v. State, 1974 OK CR 233, 530 P.2d 557 (simple assault cannot be repelled with a deadly weapon where the assault is not such as to excite the assaulted person's fears, as a reasonable person, of death or great bodily harm).
Since section 645 requires that the offensive conduct be perpetrated either with a type of firearm or air gun or "other means whatever," or by means of a dangerous weapon, a definition of "other means" and "dangerous weapon" is appropriate. The Court of Criminal Appeals has invoked the rule of ejusdem generis in construing section 645, ruling that "other means whatever" refers only to weapons similar to or in the class of firearms and air guns. Smith v. State, 1944 OK CR, 79 Okl. Cr. 1, 151 P.2d 74 .
In reference to those implements which might be termed "dangerous" for purposes of section 645, clearly those deemed "deadly" as a matter of law when used in the ordinary manner contemplated by their design and construction, must also be considered "dangerous" for purposes of section 645. Beeler v. State, 1959 OK CR 9, 334 P.2d 799 , 806, citing former 21 O.S. 1951, § 1271 (repealed 1971). As discussed in the Commission Comment pertinent to section 652, such per se dangerous weapons include "any pistol, revolver, dagger, bowie knife, dirk knife, switch-blade knife, spring-type knife, sword cane, knife having a blade which opens automatically, ... black-jack, loaded cane, billy, hand chain, metal knuckles ...." Former 21 O.S. 1951, § 1271 (repealed 1971).
If the device used by the defendant in the assault or battery is not dangerous per se, reference must be made to the manner of its use in the circumstances of the case, so that the jury can determine, as a factual matter, whether an ordinary implement took on the character of dangerousness by the way in which the defendant wielded it. Bourbonnais v. State, 1912 OK CR 294, 7 Okl. Cr. 717, 122 P. 1131 . The court has consistently stressed:
The use of a dangerous weapon is what distinguishes the crime of an assault with a dangerous weapon with intent to do bodily harm from a simple assault. A dangerous weapon is one likely to produce death or great bodily injury by the use made of it, or perhaps it is more accurately described as a weapon which in the manner it is used or attempted to be used endangers life or inflicts great bodily harm.
Wilcox v. State, 1917 OK CR 137, 13 Okl. Cr. 599, 601, 166 P. 74 , 75. See also Smith, supra, at 82-85. When appropriate proof of the use made by the defendant of the particular item in committing the offensive conduct is adduced, the court has found a variety of items sufficiently "dangerous" to warrant conviction under section 645. See, e.g., Barnes v. State, 1971 OK CR 445, 490 P.2d 783 (beer glass); Hay v. State, 1968 OK CR 209, 447 P.2d 447 (feet clad with shoes); Bald Eagle v. State, 1960 OK CR 73, 355 P.2d 1015 (beer bottle); Strahan v. State, 1955 OK CR 71, 284 P.2d 744 (automobile window crank); Lott v. State, 1950 OK CR, 92 Okl. Cr. 324, 223 P.2d 147 (automobile); Tipler v. State, 1943 OK CR, 78 Okl. Cr. 85, 143 P.2d 829 (leather strap); Beck v. State, 1941 OK CR, 73 Okl. Cr. 229, 119 P.2d 865 (chair, stick, clock).
Although the instruction describes the implement used to perpetrate the crime in the categorical terms of the statute, where the proof adduced shows that the assaultive means is known, the court should substitute the particular weapon involved for the broad categorical terms.
The mere fact that the defendant used a particular device in a manner likely to produce injury or great bodily harm does not alleviate the necessity of proving that the defendant specifically intended to inflict such corporal harm. For example, in Eckhart v. State, 1956 OK CR 6, 292 P.2d 451 , the defendant fired a shot at some laborers working on the roof of the building in which the defendant lived. The events leading up to the altercation included the facts that the workmen had disconnected the defendant's air conditioning on the previous day, and that they had begun working on the room at 5:30 a.m. on the day of the shooting. The defendant was awakened when chunks of plaster were dislodged from his ceiling and struck him as he lay in bed. One of the workmen stood only a few feet from the defendant as the defendant fired the shot. The court reduced the defendant's conviction for assault with a dangerous weapon to simple assault, on the ground that the defendant's intent to injure someone was not established by these circumstances. At most, the court believed that the defendant was provoked by the incidents of the past day and fired a shot in order to scare the workmen and to demonstrate his grievance.
Intent is negated by the occurrence of an accident, so long as the accident producing the injury occurred while the defendant was acting in a lawful manner, with reasonable regard for the safety of others. Lane v. State, supra. Thus, if the defendant armed himself for purposes of assaulting the victim, rather than to ward off an attack, the fact that the gun discharged accidentally furnishes no defense. Lane, supra.
The existence of specific intent to harm or injure is a question of fact for the jury. Hart v. State, 1971 OK CR 258, 488 P.2d 158 ; Washington v. State, 1967 OK CR 59, 426 P.2d 372 .
The instruction is set forth in alternative formulations in the interests of clarity. Where the injury is inflicted by means of a dangerous weapon, the defendant will generally be aware of the identity of the victim, so that the intent is to wound that particular person. However, where the defendant shoots with intent to injure one person, the fact that an unintended victim is assaulted does not alleviate the offense. Jones v. State, 1973 OK CR 151, 508 P.2d 280 .
A comment regarding proof of specific intent to harm under section 645 is warranted. The Court of Criminal Appeals has held on many occasions that the particular use to which an automobile is put by the defendant may render it a dangerous weapon. Hart, supra; Washington, supra; State v. Hollis, 1954 OK CR 98, 273 P.2d 459 . However, the court has further ruled that the defendant's culpable or wanton negligence in the operation of his automobile suffices to substitute for and to supply the requisite intent to do bodily harm under section 645. Matin v. State, 1958 OK CR 113, 333 P.2d 585 ; Lott v. State, supra; Beck v. State, supra. These cases involved gross intoxication on the part of the defendants.
However, in view of the enactment of the negligent homicide statute in 1961, section 11-903 of Title 47, and the court's interpretation of this statute in subsequent cases, a question regarding the scope of the rule articulated in the aforementioned cases is raised. Section 11-903 provides that a person who causes the death of another through operation of a vehicle in "reckless disregard for the safety of others" is culpable for negligent homicide. The court has held that all forms of behavior of the reckless driving ilk which cause death are exclusively covered by this statute. Short v. State, 1977 OK CR 44, 560 P.2d 219 . However, where the defendant is guilty of driving while intoxicated and such conduct produces death, this conduct removes a consequent homicide from the definition of "negligent homicide," and renders a conviction for manslaughter in the first degree appropriate. Lomahaitewa v. State, 1978 OK CR 67, 581 P.2d 43 ; White v. State, 1971 OK CR 141, 483 P.2d 751 ; Ritchie v. Raines, 1962 OK CR 101, 374 P.2d 772 .
Although the court's construction of the intent to do bodily injury element of section 645 where the defendant is intoxicated and causes injury through his vehicle is consistent with the court's interpretation of the vehicular homicide statute, it is submitted that the substitution of specific intent to harm by culpable negligence is limited to cases involving intoxication. Otherwise, a more severe punishment for reckless driving that produces injury would be possible than for reckless driving that causes death.