Committee Comments

This introductory instruction is intended for use with regard to the offenses defined in sections 641 through 652, and section 681, of Title 21. These offenses, despite the precise conduct prohibited, involve the commission of an assault, a battery, or an assault and a battery, so these words are defined in statutory terms at the outset. The only possible exception is the crime of attempted murder, as set forth in section 652, so if the attempt is perpetrated by means other than assault and battery, those terms need not be defined.

Assault and battery constitute distinct crimes. Oklahoma defines assault as an attempted battery, as well as an intentional placing of another in apprehension of receiving an imminent battery. Tyner v. United States, 2 Okl. Cr. 689, 103 P. 1057 (1909). Therefore, an oral threat alone, without an overt act, is insufficient to constitute an assault.

Crilley v. State, 15 Okl. Cr. 44, 181 P. 316 (1919). Although assault is always a lesser included offense of battery, the converse is obviously not true. Parks v. State, 14 Okl. Cr. 413, 171 P. 1129 (1918). Some of the offenses defined in this section require that the defendant commit both assault and battery. See 21 O.S. Supp. 1995, § 652. Other statutes, such as section 645, require commission of either, or of both. Section 681 requires only that an assault be perpetrated. The specific conduct and mental state required for each crime are discussed in the Committee Comments pertinent to each instruction.