Committee Comments

As recognized by the Court of Criminal Appeals in Davis v. State, 1960 OK CR 6, 354 P.2d 466, section 652 encompasses four different methods by which an assault and battery might be perpetrated, as well as an attempted-murder provision. In the interest of clarity, a separate instruction is presented to cover each of these five situations.

OUJI-CR 4-4. Shooting with intent to kill. Section 652(A) proscribes those assaults and batteries wherein a firearm is wrongfully used with the intention of killing another. This statute was amended in 1977 by deleting attempted shootings from this first sentence. Thus, limiting the first sentence to cases where the defendant "shoots" another restricts application of this portion of section 652 to situations where the defendant discharges a loaded firearm and the bullet actually penetrates or contacts the body of the victim. Flowers v. State, 4 Okl. Cr. 320, 111 P. 675 (1910). The court should not instruct under this subsection unless the facts reasonably demonstrate a shooting of the victim by the defendant.

In order to be convicted under section 652(A), the shooting must be wrongful and performed without justification or excuse, Bartell v. State, 4 Okl. Cr. 135, 111 P. 669 (1910), as well as being intentional, the consequence of volitional conduct. In view of the statutory requirement that the defendant must have formed a specific intent to destroy human life, inclusion of the requirement that the act of defendant be volitional in the first element may seem redundant. The element is phrased as requiring "intentional" conduct in order to accord with statutory language.

The intent to kill another person is the gravamen of the offenses described in section 652(A), and it is the distinguishing factor between sections 652 and 645. Meggett v. State, 1979 OK CR 89, 599 P.2d 1110; Davis v. State, supra. Section 652(A) proscribes shooting performed with the intent to inflict death. Section 645 applies to assaultive conduct performed with no intent to kill, but to inflict injury upon the victim. Use of a gun or other deadly weapon, in itself, does not give rise to a presumption of intent to kill. Rather, intent remains a question of fact to be determined by the jurors. Watkins v. State, 25 Okl. Cr. 10, 218 P. 895 (1923).

This requisite intent may be negated by proof that the discharge of the firearm occurred accidentally. So long as there is proof that the defendant was conducting himself in a lawful manner, with reasonable regard for the lives and safety of others, the jurors should be instructed regarding the defense of accident, and the defendant is entitled to an acquittal if the issue is determined in his favor. Holdge v. State, 1978 OK CR 116, 586 P.2d 744; Childs v. State, 68 Okl. Cr. 435, 99 P.2d 539 (1940). However, the court has consistently held that interposition of the defense of accident does not in itself entitle the defendant to an instruction on simple assault and battery. Holdge, supra; Childs, supra.

The element describing the mental state is framed in terms of an "intent to take a human life," since the intent to kill need not be directed toward the person actually felled by the defendant's shot. The Court of Criminal Appeals has held that the act of shooting into a group of persons with the intention of killing a particular person constitutes an assault and battery under section 652 upon each member of the group. Holdge, supra; Phillips v. United States, 2 Okl. Cr. 628, 103 P. 861 (1909).

In numerous cases, the court has addressed the question of lesser included offenses. Generally, all of the crimes defined by sections 641, 642, 645, 649, and 650 of Title 21 are lesser included offenses of assault and battery with intent to kill. The court has consistently stated that instructions on lesser included offenses are warranted where any evidence in support of the lesser charge is adduced. Holdge, supra; Bailey v. State, 536 P.2d 985 (Okl. Cr. 1975); Gist v. State, 509 P.2d 149 (Okl. Cr. 1973); Pettigrew v. State, 430 P.2d 808 (Okl. Cr. 1967); Childs, supra.

OUJI-CR 4-6. Use of a deadly weapon. Section 652(C) proscribes all assaults and batteries perpetrated with intent to effect death through use of a deadly weapon. The statutory language clearly requires that the conduct of the defendant constitute both an assault and a battery, due to a wording change enacted in the 1977 revision of section 652. Therefore, the judge should not instruct under section 652(C) unless the defendant's conduct could reasonably be found to constitute both an assault and a battery.

The issue raised by this portion of the statute concerns the determination of whether a particular weapon is "deadly," and therefore within the purview of section 652(C). In the leading case, Beeler v. State, 334 P.2d 799 (Okl. Cr. 1959), the court declared that certain implements of damage and destruction may be termed deadly per se, or deadly as a matter of law. Other weapons, although not deadly when used in accordance with the purpose for which they were designed, may be established as deadly under the circumstances, depending upon the intention of the person wielding the weapon and the manner of its use.

In determining whether a weapon is to be denominated deadly per se, the court stated that cognizance must first be afforded to the legislative determination incorporated in section 1272 of Title 21, the current version of which forbids carrying, under most circumstances, "any pistol, revolver, dagger, bowie knife, dirk knife, switch-blade knife, spring-type knife, sword cane, knife having a blade which opens automatically .... blackjack, loaded cane, billy, hand chain, metal knuckles, or any other offensive weapon. ..." Each of these devices is deemed deadly per se "by virtue of being an instrument which, when used in the ordinary manner contemplated by its design or construction, will or is likely to cause death or great bodily harm." Beeler, supra, at 806. Accord, State v. Spurlock, 371 P.2d 739 (Okl. Cr. 1962).

However, the court further stated that its determination of which weapons should be denominated deadly per se was not circumscribed by the statutory enumeration. In Beeler, the court affirmed the trial court's determination that a trace chain wrapped around the hand of the defendant and thus used to beat the complaining witness was indistinguishable from a pair of brass knuckles, although the latter were included within the statutory enumeration at that time, and the former was not. The court held that determination of per se deadliness would be premised upon a logical two-part inquiry:

Beeler, supra, 334 P.2d, at 807.

Many implements utilized with the intent to inflict death, however, are not deadly per se. Heritage v. State, 503 P.2d 247 (Okl. Cr. 1972) (a hammer); Bean v. State, 77 Okl. Cr. 73, 138 P.2d 563 (1943) (the defendant's hands and feet); Ponkilla v. State, 69 Okl. Cr. 31, 99 P.2d 910 (1940) (ordinary pocket knife); Moody v. State, 11 Okl. Cr. 471, 148 P. 1055 (1915) (a plank). Where the weapon charged to have been used is not deadly per se, the information must set forth facts to establish a sufficient description of the instrument, the manner in which it was used, and the effect produced by such use. Eaton v. State, 418 P.2d 710 (Okl. Cr. 1966); Davis v. State, 354 P.2d 466 (Okl. Cr. 1960); Ponkilla, supra; Moody, supra. The question of deadliness, for purposes of section 652, then becomes a matter of factual determination by the jury. Beeler, supra; Martin v. State, 67 Okl. Cr. 390, 94 P.2d 270 (1939).

It should be emphasized that the mere fact that a lethal weapon is wielded does not in itself establish the requisite intent to kill, although such intent may be inferred from the circumstances of the weapon's use, such as the manner and degree of viciousness with which the instrument was employed by the defendant. Fox v. State, 556 P.2d 1281 (Okl. Cr. 1976).

OUJI-CR 4-7. Use of means or force likely to produce death. The issue concerning the potential for deadliness of a particular implement is often somewhat academic, since perpetration of an assault and battery by means other than use of a lethal weapon or use of force calculated to inflict death is also punishable under section 652(C). The often-quoted position of the Court of Criminal Appeals is this:

Gober v. State, 25 Okl. Cr. 145, 149-50, 219 P. 173, 174 (1923). See also Pettigrew v. State, 430 P.2d 808 (Okl. Cr. 1967) (defendant's use of fists, hands and feet to beat complainant deemed sufficient); Davis v. State, 300 P.2d 1000 (Okl. Cr. 1956) (defendant's use of a claw hammer to beat his wife held sufficient); Jones v. State, 46 Okl. Cr. 187, 287 P. 1073 (1930).

The judge should not instruct under section 652(C) unless the facts reasonably demonstrate that the defendant's conduct constitutes both an assault and a battery.

OUJI-CR 4-8. Any other attempt to kill. Section 652(C) makes punishable any conduct whereby defendant "in any manner attempts to kill another." A literal construction of this statutory language punishes any attempt to take human life, whether or not accomplished by the defendant in conjunction with an assault and battery. Thus, the elements describing this offense have been adapted from those required by the Court of Criminal Appeals in attempt cases arising under section 42 of Title 21: "There are three elements required to be proven in order to prosecute an attempt to commit a crime. They are, the intent to commit a specified crime, performance of some overt act toward its commission, and failure of consummation." Weimar v. State, 556 P.2d 1020, 1024 (Okl. Cr. 1976), citing Erwin v. State, 351 P.2d 401 (Okl. Cr. 1960).

The attempt crime defined by section 652(C) may be committed either by an overt act or by an omission to act in circumstances where there exists a legal duty to act. W. LaFave & A. Scott, Criminal Law § 27, at 190 (1972).

The Commission's literal reading of section 652 as not requiring an assault and battery concededly renders the statute ungrammatical, since it is the Commission's conclusion that the other crimes defined by section 652 do require an assault and a battery by the defendant. It might be argued that this broad construction would render superfluous other statutes which prohibit the attempt to take life, such as section 651 (attempt to kill by administering poison) and section 653 (assault with intent to kill not covered by section 652). The point is not precisely settled by Oklahoma case law; however, in Ex parte Smith, 95 Okl. Cr. 370, 246 P.2d 389 (1952), the court granted the habeas corpus petition of a defendant who was convicted of "attempted murder" by shooting and was sentenced to 50 years imprisonment. The court determined that this offense is specifically covered by section 652 and therefore must be prosecuted under that more precise statute, which prescribed at that time a maximum penalty of ten years, making defendant's sentence grossly excessive. Similarly, in Minter v. State, 75 Okl. Cr. 133, 138, 129 P.2d 210, 212 (1942), the court construed section 652 as proscribing "the offense of assault and battery with intent to kill with a deadly weapon." In Davis v. State, 354 P.2d 466 (Okl. Cr. 1960), the court carefully outlined the means by which a crime defined by section 652 could be committed, but omitted all reference to the "attempts to kill" language, although such language was part of the statute being construed. Thus, the court has construed the "attempts to kill" language of section 652 only in cases where an assault and battery and some type of forcible conduct actually occurred, and has not addressed the issue of whether only those attempts involving both an assault and a battery are encompassed within section 652.

OUJI-CR 4-9. Resisting the execution of any legal process. Section 652(C) literally punishes an assault and battery that is committed without any specific intent to kill and absent any lethal force or means, but occurs during the course of "resisting the execution of any legal process." Although no Oklahoma cases precisely construe this part of the statute, the court stated in Davis v. State, supra, that one of the means by which an offense defined by section 652 might be committed was "assault and battery in resisting execution of legal process" with no additional requirements of lethal force or specific intent.

The court should not instruct under section 652 unless, in resisting, the defendant perpetrates both an assault and a battery.