2006 Nebraska Code - § 28-308 — Assault in the first degree; penalty.Section 28-308
Assault in the first degree; penalty.
(1) A person commits the offense of assault in the first degree if he intentionally or knowingly causes serious bodily injury to another person.
(2) Assault in the first degree shall be a Class III felony.
- Laws 1977, LB 38, § 23
- The language of this section clearly is not unconstitutionally vague. The jury properly found assault in the first degree where the defendant deliberately struck the victim four times in the jaw, causing a fracture which required surgery to prevent serious permanent disfigurement. State v. Schreck, 226 Neb. 172, 409 N.W.2d 624 (1987).2. Generally
In dealing with a criminal charge all attempts to do physical violence which amount to a statutory assault are unlawful and a breach of the peace, and a person cannot consent to an unlawful assault. State v. Hatfield, 218 Neb. 470, 356 N.W.2d 872 (1984).3. Lesser-included offense
First degree assault and second degree assault are two distinct offenses and second degree assault is not a lesser-included offense of first degree assault. State v. Billups, 209 Neb. 737, 311 N.W.2d 512 (1981).4. Proximate cause
Where the injuries are objective and the conclusion to be drawn from proved basic facts does not require special technical knowledge or science, the use of expert testimony is not legally necessary to prove a causal connection between a blow and the injuries inflicted. A jury may properly infer from the evidence that a single blow to a victim's jaw was the proximate cause of the victim's serious injuries. State v. Costanzo, 227 Neb. 616, 419 N.W.2d 156 (1988).5. Requisite mental state
The intent required under subsection (1) of this section relates to the assault, not to the injury which results. State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993).
The law is settled that independent evidence of specific intent is not required. The intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident. To determine whether the defendant acted with justification or had the required intent for assault in the first degree, the jury may consider circumstantial evidence as to the force of the blow the defendant administered. State v. Costanzo, 227 Neb. 616, 419 N.W.2d 156 (1988).6. Serious bodily injury
In reference to first degree assault, assaultive conduct which results in exposure to the specific harms described in section 28-109(20), and not actual infliction of the harms described in that statute, is the gravamen of first degree assault and the criminal conduct proscribed by subsection (1) of this section; it is not necessary that the injury cause death, serious permanent disfigurement, or impairment of the function of any part or organ of the body, but only that it involved a substantial risk of producing those results. State v. Swigart, 233 Neb. 517, 446 N.W.2d 216 (1989).
Knife wounds which cause the victim to bleed so badly that she passes out and which require thirteen stitches create a substantial risk of death and, therefore, constitute serious bodily injury. State v. Schuette, 223 Neb. 777, 393 N.W.2d 718 (1986).
Assault in the first degree is not a lesser-included offense of attempted murder in the second degree. State v. Lovelace, 212 Neb. 356, 322 N.W.2d 673 (1982).
Evidence indicated that shooting was intentional and not reckless. While every shooting does not automatically inflict a serious bodily injury, when one is shot in the chest above the heart and the bullet is surgically removed, the statutory definition of serious bodily injury is met. State v. Billups, 209 Neb. 737, 311 N.W.2d 512 (1981).
Multiple injuries including a cerebral concussion and nasal fracture constitute serious bodily injuries which will support a conviction for first degree assault under this section. State v. Sare, 209 Neb. 91, 306 N.W.2d 164 (1981).
~Reissue Revised Statutes of Nebraska
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