ASSAULT WITH INTENT TO COMMIT A FELONY - ELEMENTS
No person may be convicted of assault with intent to commit a felony unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
First, an assault;
Second, upon another person;
Third, with the intent to commit the felony of [Indicate Specific Felony];
Fourth, the elements of the [Indicate Specific Felony] defendant is alleged to have been in the commission of are as follows:
[Give Elements of Specific Felony].
Statutory Authority: 21 O.S. 1991, § 681.
This statute, proscribing assaults perpetrated with the specific intention of committing a felony, has been utilized for the most part as a basis for prosecuting assaults with the intent to commit rape, which is a lesser included offense of the crime of attempted rape. Easter v. State, 74 Okl. Cr. 114, 123 P.2d 691 (1942); Temple v. State, 71 Okl. Cr. 301, 111 P.2d 524 (1941). However, conduct which constitutes attempted rape may be charged under section 681 or under section 44. Jones v. State, 341 P.2d 616 (Okl. Cr. 1959); Mayfield v. McLeod, 261 F.2d 850 (1Oth Cir. 1958).
Regardless of which felony underlies the charge of felonious assault, the essence of this offense is the specific intent on the part of the defendant to perpetrate a felony. An assault and battery alone, absent proof of the defendant's intent to commit some felony, is insufficient to sustain a conviction under this statute. Vandiver v. State, 97 Okl. Cr. 217, 261 P.2d 617 (1953), overruled on other grounds, Parker v. State, 917 P.2d 980, 986 n.4 (Okl.Cr. 1996); Easter, supra; Cape v. State, 61 Okl. Cr. 173, 66 P.2d 959 (1937). Where the evidence regarding the defendant's intent at the time the assaultive conduct occurred so warrants, the jurors should be instructed regarding the lesser included offenses of assault or battery. Easter, supra; Brockman v. State, 60 Okl. Cr. 75, 61 P.2d 273 (1936).
The sufficiency of proof of the defendant's intent to commit an independent felony remains a factual determination for the jury and may be inferred from the nature of the assault and the circumstances under which it was committed. Harvey v. State, 485 P.2d 251 (Okl. Cr. 1971); Garrison v. State, 473 P.2d 341 (Okl. Cr. 1970); Pusley v. State, 22 Okl. Cr. 192, 210 P. 306 (1922). Where the defendant is charged under this section, the trial judge must also instruct the jury regarding the elements of the independent felony.