2018 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 3 - Assault and Battery
Section 30-3-4 - Battery.

Universal Citation: NM Stat § 30-3-4 (2018)
30-3-4. Battery.

Battery is the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.

Whoever commits battery is guilty of a petty misdemeanor.

History: 1953 Comp., § 40A-3-4, enacted by Laws 1963, ch. 303, § 3-4.


Cross references. — For assault and battery upon revenue division employees, see 7-1-75 NMSA 1978.

For battery upon peace officers, see 30-22-24 NMSA 1978.

Lesser included offense. — Petty-misdemeanor battery is a lesser included offense of aggravated battery. The difference is that simple battery does not require an intent to injure. State v. Garcia, 2009-NMCA-107, 147 N.M. 150, 217 P.3d 1048.

Battery is a lesser included offense of aggravated battery upon a peace officer under Section 30-22-25 NMSA 1978. State v. Nozie, 2009-NMSC-018, 146 N.M. 142, 207 P.3d 1119, aff'g 2007-NMCA-131, 142 N.M. 626, 168 P.3d 756.

Battery of spouse. — There is no language in this statute indicating that different standards should be employed when the victim of a battery is the spouse of the defendant. State v. Seal, 1966-NMSC-123, 76 N.M. 461, 415 P.2d 845.

Angry and insolent manner. — Where there was testimony that appellant grabbed his wife, pushed or "slammed" her against a parked car, held her there and after she broke away, followed her to her car where he proceeded to talk to her for at least an hour while she cried and screamed for him to let her go, there was ample evidence for the trial court to conclude that appellant acted in a rude, insolent or angry manner as defined in this section when he applied force to the person of his wife. State v. Seal, 1966-NMSC-123, 76 N.M. 461, 415 P.2d 845.

Parent common law discipline privilege. — A parent has a privilege to use moderate or reasonable physical force, without criminal liability, when engaged in the discipline of his or her child. State v. Lefevre, 2005-NMCA-101, 138 N.M. 174, 117 P.3d 980.

An isolated instance of moderate or reasonable physical force that results in nothing more than transient pain or temporary marks or bruises is protected under the parental discipline privilege. State v. Lefevre, 2005-NMCA-101, 138 N.M. 174, 117 P.3d 980.

Battery is included within offense of aggravated battery. State v. Duran, 1969-NMCA-048, 80 N.M. 406, 456 P.2d 880.

Battery does not merge with false imprisonment. — Since false imprisonment requires a constraining or confining with knowledge of lack of legal authority and battery does not, and the elements for proving the two offenses differ, the two offenses do not merge. State v. Muise, 1985-NMCA-090, 103 N.M. 382, 707 P.2d 1192, cert. denied, 103 N.M. 287, 705 P.2d 1138, overruled on other grounds, State v. Laguna, 1999-NMCA-152, 128 N.M. 345, 992 P.2d 896, cert. denied, 128 N.M. 149, 990 P.2d 823.

Proof of battery demands conviction or acquittal thereon. — Regardless of whether either assault or aggravated assault is included in the charge of battery since there was proof of a battery, defendant should be convicted of some degree of battery (either aggravated or simple) or acquitted. State v. Duran, 1969-NMCA-048, 80 N.M. 406, 456 P.2d 880.

Charge of unlawfulness mandatory. — Indictment charging that defendant "did beat, bruise and wound" a person, but omitting to aver it was done "unlawfully" was bad; by using the word "unlawfully" the statute intended to discriminate between lawful and unlawful acts of violence. Territory v. Miera, 1866-NMSC-004, 1 N.M. 387.

Double jeopardy. — Where the evidence established that defendant committed three separate and distinct battery offenses, double jeopardy did not preclude the first two batteries supporting a conviction for battery, even though the third battery satisfied elements of a charge of criminal sexual penetration. Brecheisen v. Mondragon, 833 F.2d 238 (10th Cir. 1987), cert. denied, 485 U.S. 1011, 108 S. Ct. 1479, 99 L. Ed. 2d 707 (1988).

Where provision in an order prohibiting domestic violence (OPDV), prohibiting "battering in any manner," contained all elements of the statutorily defined offense of battery, a criminal prosecution for battery following a contempt proceeding for violating the OPDV violated defendant's right against double jeopardy. State v. Powers, 1998-NMCA-133, 126 N.M. 114, 967 P.2d 454., cert. quashed, 127 N.M. 392, 981 P.2d 1210 (1999).

Kidnapping and battery. — Where defendant drove the victim to a deserted area, pulled the victim out of the vehicle, pulled the victim's hair, kicked the victim, threw the victim into bushes, and beat the victim; defendant held the victim by the arm and drove to a second location where defendant again beat the victim; when the victim attempted to run away, defendant put the victim in the vehicle and drove to a third location and again beat the victim and forced the victim to have intercourse with defendant; and defendant was convicted of kidnapping in the first degree and battery, defendant's convictions did not violate double jeopardy because defendant's conduct was not factually unitary or legally unitary because the jury could have determined that the victim suffered physical injuries when defendant dragged the victim from the vehicle, threw the victim into the bushes, pulled the victim's hair, or otherwise restrained the victim, all actions distinct from the hitting and kicking on which the battery charge was based. State v. Sotelo, 2013-NMCA-028, 296 P.3d 1232, cert. denied, 2013-NMCERT-001.

Instruction on simple battery wrongly refused. — Battering a peace officer while in the lawful discharge of his duties is battering the person of another, and where there was evidence that the victim police officer was not in the lawful discharge of his duties in connection with the altercation, the trial court erred in refusing to instruct on simple battery as well as on battery on an officer. State v. Kraul, 1977-NMCA-032, 90 N.M. 314, 563 P.2d 108, cert. denied, 90 N.M. 637, 567 P.2d 486.

Where there was evidence tending to establish the included offense of battery in charge of aggravated battery, trial court erred in refusing to instruct on lesser included offense. State v. Duran, 1969-NMCA-048, 80 N.M. 406, 456 P.2d 880.

In trial of Indian for rape under the federal Major Crimes Act (18 U.S.C. §§ 1153, 3242, conferring federal jurisdiction over certain enumerated major crimes committed by Indians on Indian reservations), it was reversible error for trial court to refuse to instruct on the non-enumerated offenses of attempted rape, simple assault and battery, all of which were lesser included offenses under New Mexico law. Joe v. United States, 510 F.2d 1038 (10th Cir. 1974).

Right to de novo appeal. — Where defendant was convicted in metropolitan court of battery against a household member in violation of this section, because the state did not prosecute the battery under Section 30-3-15 NMSA 1978, state could not contend that defendant was convicted of a crime involving domestic violence and he was entitled to a de novo appeal in district court rather than just an on-record review of the proceeding. State v. Trujillo, 1999-NMCA-003, 126 N.M. 603, 973 P.2d 855.

Law reviews. — For note, "Criminal Law: Applying the General/Specific Statute Rule in New Mexico State v. Santillanes," see 32 N.M.L. Rev. 313 (2002).

For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63 (1974).

For note, "Municipal Assumption of Tort Liability for Damage Caused by Police Officers," see 1 N.M.L. Rev. 263 (1971).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 6 Am. Jur. 2d Assault and Battery §§ 37 to 41.

Peace officers' criminal responsibility for wounding one whom they wished to investigate or identify, 18 A.L.R. 1368, 61 A.L.R. 321.

Right of one in loco parentis other than teacher to punish child, 43 A.L.R. 507.

Liability of parent or person in loco parentis for personal tort against minor child, 19 A.L.R.2d 423.

Criminal liability as barring or mitigating recovery of punitive damages, 98 A.L.R.3d 870.

Single act affecting multiple victims as constituting multiple assaults or homicides, 8 A.L.R.4th 960.

Standard for determination of reasonableness of criminal defendant's belief, for purposes of self-defense claim, that physical force is necessary - modern cases, 73 A.L.R.4th 993.

6A C.J.S. Assault and Battery §§ 70, 71.

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