2018 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 3 - Assault and Battery
Section 30-3-5 - Aggravated battery.

Universal Citation: NM Stat § 30-3-5 (2018)
30-3-5. Aggravated battery.

A. Aggravated battery consists of the unlawful touching or application of force to the person of another with intent to injure that person or another.

B. Whoever commits aggravated battery, inflicting an injury to the person which is not likely to cause death or great bodily harm, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the body, is guilty of a misdemeanor.

C. Whoever commits aggravated battery inflicting great bodily harm or does so with a deadly weapon or does so in any manner whereby great bodily harm or death can be inflicted is guilty of a third degree felony.

History: 1953 Comp., § 40A-3-5, enacted by Laws 1963, ch. 303, § 3-5; 1969, ch. 137, § 1.

ANNOTATIONS

Cross references. — For aggravated battery upon peace officer, see 30-22-25 NMSA 1978.

I. GENERAL CONSIDERATION.

Section not violative of constitution's title requirements. — Although this section provides that an aggravated battery may be either a misdemeanor or a felony, depending on the circumstances, N.M. Const., art. IV, § 16 is not violated, since title clearly shows that the subject of the act is aggravated battery and that more than one penalty is provided. State v. Segura, 1973-NMCA-006, 83 N.M. 432, 492 P.2d 1295.

Section not void for vagueness. — This section is not void for vagueness because a defendant's aggravated battery may be either a felony or misdemeanor or that it depends entirely on the view of the evidence taken by the trier of facts. State v. Segura, 1973-NMCA-006, 83 N.M. 432, 492 P.2d 1295.

This section is not unconstitutionally vague either when its subsections are compared or when the entire section is compared with Section 30-3-4 NMSA 1978. State v. Chavez, 1971-NMCA-030, 82 N.M. 569, 484 P.2d 1279, cert. denied, 82 N.M. 562, 484 P.2d 1272.

Section not in conflict with Section 31-18-15.1 NMSA 1978. — This section and Section 31-18-15.1 NMSA 1978 (aggravating circumstances affecting sentencing) do not provide punishment for the same offense, and these sections are not in conflict. State v. Wilson, 1982-NMCA-019, 97 N.M. 534, 641 P.2d 1081, cert. denied, 98 N.M. 50, 644 P.2d 1039.

The elements of an offense do no more than establish the offense. The circumstances surrounding the offense, including the circumstances surrounding each of the elements of the offense, may be considered under Section 31-18-15.1 NMSA 1978. State v. Wilson, 1982-NMCA-019, 97 N.M. 534, 641 P.2d 1081, cert. denied, 98 N.M. 50, 644 P.2d 1039.

Defendant charged in the alternative. — Aggravated battery is a third degree felony if it causes great bodily harm or if it was committed with a deadly weapon. There is nothing unfair in charging a defendant in the alternative, where the evidence supports a third degree felony conviction under both alternatives. State v. Kenny, 1991-NMCA-094, 112 N.M. 642, 818 P.2d 420, cert. denied, 112 N.M. 499, 816 P.2d 1121.

Consent is not defense to crime of aggravated battery, irrespective of whether the victim invites the act and consents to the battery. State v. Fransua, 1973-NMCA-071, 85 N.M. 173, 510 P.2d 106.

Intoxication a valid defense. — A showing of intoxication to a degree that would make specific intent impossible would establish a valid defense to the charge of aggravated battery and since the evidence in defendant's case raised an issue of fact for the jury on the question of intent to injure by showing intoxication to such a degree that defendant was unable to form the necessary intent, defendant was entitled to an instruction on this defense; the failure to so instruct was reversible error. State v. Crespin, 1974-NMCA-104, 86 N.M. 689, 526 P.2d 1282.

Protection of property. — The use of a deadly weapon in the protection of property is generally held, except in extreme cases, to be the use of more than justifiable force, and to render the owner of the property liable, both civilly and criminally, for the assault. Brown v. Martinez, 1961-NMSC-040, 68 N.M. 271, 361 P.2d 152.

Right of confrontation not violated. — Where no prior statement of any kind by the victim of an aggravated assault was brought to the attention of the jury or offered by the state, and defendant neither sought a continuance nor indicated that he desired to call the victim as a witness or what evidence he believed might be developed from the victim, his constitutional right of confrontation was not violated by absence of victim from trial. State v. James, 1966-NMSC-110, 76 N.M. 376, 415 P.2d 350.

Continuance properly refused. — Defendant's effort to have aggravated battery case continued and to have victim examined by another doctor was properly refused where there was nothing to show that defense was surprised by doctor's testimony or that defendant was prejudiced in his defense on the merits. State v. Foster, 1971-NMCA-064, 82 N.M. 573, 484 P.2d 1283.

Aggravation of sentence. — Rule against use of elements of a crime as the basis for aggravating the sentence for that crime was not violated where the defendant's failure to aid the victim and the brutality of the crime were used to aggravate the defendant's sentence; defendant's failure to aid the victim after the beating is clearly not an element of aggravated battery and the brutality of the crime, although it is a fact used to prove great bodily harm, does not equate to great bodily harm for purposes of the aggravation statute. State v. Kurley, 1992-NMCA-105, 114 N.M. 514, 841 P.2d 562, cert denied, 114 N.M. 413, 839 P.2d 623.

Where the defendant pleaded guilty to aggravated battery with great bodily harm, the defendant's sentence could be aggravated without actual evidence that his own acts, rather than the acts of his companions, were brutal; defendant's participation in the beating, which was brutal enough to actually cause death, standing alone, was sufficient. State v. Kurley, 1992-NMCA-105, 114 N.M. 514, 841 P.2d 562, cert denied, 114 N.M. 413, 839 P.2d 623.

Waiver of error. — Where defendant pleaded not guilty when arraigned and proceeded to trial without questioning propriety of magistrate's bind over, his claim that criminal information charged him with offense of aggravated battery, rather than attempted aggravated battery, concerning which there had been no preliminary examination, was waived. State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150.

Defendant was bound by plea of guilty to attempt to commit aggravated battery and was not entitled to post-conviction relief either on grounds that his actions did not constitute attempt to commit aggravated battery or that state had failed to establish his intent. State v. Bonney, 1971-NMCA-041, 82 N.M. 508, 484 P.2d 350.

Withdrawal of plea properly denied. — Trial court's denial of defendant's motion to withdraw his plea of guilty to a charge of aggravated assault after sentence was imposed did not violate due process where the only basis asserted for withdrawal of the plea was that the trial court refused to follow the sentencing recommendation of the district attorney. State v. Ramos, 1973-NMCA-103,85 N.M. 438, 512 P.2d 1274.

Firearm enhancement statute constitutionally applied to conviction under section. — Neither the rules of statutory construction nor the federal and state constitutional provisions against double jeopardy prohibit the application of the firearm enhancement statute to a person convicted of aggravated battery with a deadly weapon when the weapon used was a firearm. State v. Gonzales, 1981-NMCA-023, 95 N.M. 636, 624 P.2d 1033, overruled on other grounds, Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244.

II. ELEMENTS OF AGGRAVATED BATTERY.

The question of whether an individual has used his mouth as a deadly weapon is strictly a question of fact, reserved for the jury. State v. Neatherlin, 2007-NMCA-035, 141 N.M. 328, 154 P.3d 703.

This section requires intent to injure, of which there must be substantial evidence for there to be proof that the crime of aggravated battery has been committed. State v. Mora, 1970-NMCA-072, 81 N.M. 631, 471 P.2d 201, cert. denied, 81 N.M. 668, 472 P.2d 382.

Specific intent to injure is essential element of crime of aggravated battery, and the state must prove beyond a reasonable doubt that the defendant knowingly committed the crime purposely intending to violate the law. State v. Crespin, 1974-NMCA-104, 86 N.M. 689, 526 P.2d 1282; State v. Mills, 1980-NMCA-005, 94 N.M. 17, 606 P.2d 1111, cert. denied, 94 N.M. 628, 614 P.2d 545.

Intent to injure may be inferred. — Intent to injure, as required by this section, need not be established by direct evidence but may be inferred from conduct and the surrounding circumstances. State v. Michael S., 1995-NMCA-112, 120 N.M. 617, 904 P.2d 595, cert. denied, 120 N.M. 533, 903 P.2d 844.

Under former law, specific intent to commit mayhem was inferred as a matter of law. Where the defendant deliberately committed the crime of assault and battery, in so doing, he committed mayhem. State v. Hatley, 1963-NMSC-110, 72 N.M. 377, 384 P.2d 252 (decided under prior law).

Great bodily harm. — Subsection C of this section requires only that great bodily harm could result, not that it must result. State v. Pettigrew, 1993-NMCA-095, 116 N.M. 135, 860 P.2d 777, cert. denied, 116 N.M. 71, 860 P.2d 201.

Great bodily harm includes permanent loss or impairment (permanent injury). State v. Chavez, 1971-NMCA-030, 82 N.M. 569, 484 P.2d 1279, cert. denied, 82 N.M. 562, 484 P.2d 1272.

Proximate cause of harm. — Whether battery caused great bodily harm is to be determined by "proximate cause" and a defendant's act need not be a direct, that is, immediate, cause. State v. Chavez, 1971-NMCA-030, 82 N.M. 569, 484 P.2d 1279, cert. denied, 82 N.M. 562, 484 P.2d 1272.

Nature of injury determines degree of crime. — Whether crime is a misdemeanor or a felony depends largely, as shown by Subdivisions B and C, on the nature of the injury inflicted. State v. Chavez, 1971-NMCA-030, 82 N.M. 569, 484 P.2d 1279, cert. denied, 82 N.M. 562, 484 P.2d 1272.

The nature of the injury was an important element of mayhem. State v. Martin, 1926-NMSC-048, 32 N.M. 48, 250 P. 842 (decided under prior law).

Degree of harm for jury. — It was a question of fact for the jury whether forcible tattooing of victim with needle and India ink from back of neck to center part of waist, which tattoo recited an offensive sentence in large letters and could be removed only with strenuous and extensive skin grafting, was "great bodily harm" as required under this section and defined at 30-1-12 NMSA 1978. State v. Ortega, 1966-NMSC-186, 77 N.M. 312, 422 P.2d 353.

Degree of harm. — It was for the jury to determine whether the injuries inflicted on gasoline station attendant who was robbed, beaten and set on fire with gasoline were likely to cause death or great bodily harm, and defendant's motion for dismissal of the indictment, which charged him with a felony, on his assertion that doctor's testimony "proved" he was guilty only of misdemeanor, was properly refused. State v. Foster, 1971-NMCA-064, 82 N.M. 573, 484 P.2d 1283.

Knife as deadly weapon. — For a knife to be a deadly weapon it must come within the portion of this statute as to any other deadly weapons with which dangerous wounds can be inflicted. State v. Martinez, 1953-NMSC-031, 57 N.M. 174, 256 P.2d 791.

Baseball bat as deadly weapon. — In a prosecution for aggravated battery with a deadly weapon, the question of whether a baseball bat was a deadly weapon should have been left to the jury; however, the error is not fundamental and must be preserved for appeal. State v. Traeger, 2001-NMSC-022, 130 N.M. 618, 29 P.3d 518.

Jury justified in so finding. — Where no one directly testified the knife was one with which dangerous wounds could be inflicted, but the wounds were described by the physician who treated the victim, and they were sufficiently severe to keep him in a hospital under the doctor's care for a week, and in addition, the scars caused by the knife wounds were shown to the jury, in view of the depth and length of the wounds the jury was fully justified in finding the knife used was a deadly weapon, although the blade used was only about two inches in length. State v. Martinez, 1953-NMSC-031, 57 N.M. 174, 256 P.2d 791.

III. EVIDENCE AND PROOF.

Sufficient evidence. — Where the victim was shot multiple times at close range outside a friend's home; after hearing shots, the friend went outside and saw defendant fleeing and the victim on the ground severely wounded; the victim told the friend and a police officer that defendant was the shooter; a forensic scientist identified a gun found in defendant's vehicle as the same gun used to shoot the victim; and a neighbor identified the vehicle shown in a photograph of defendant's vehicle as identical to the vehicle that sped way from the scene of the shooting, there was substantial evidence to support defendant's conviction of aggravated battery with a deadly weapon causing great bodily harm. State v. Fuentes, 2010-NMCA-027, 147 N.M. 761, 228 P.3d 1181, cert. denied, 2010-NMCERT-002, 147 N.M. 704, 228 P.3d 488.

Evidence sufficient to provide defendant used his mount as a deadly weapon. — Where defendant bit the victim during an altercation, defendant's bite broke the victim's skin, defendant admitted that he had hepatitis C, a medical expert testified that transmission of the hepatitis C virus is possible through a bite that breaks the skin, that hepatitis C could result in liver cancer, ultimately leading to death, and defendant told the victim when he bit the victim that he hoped the victim would die, there was sufficient evidence to prove that defendant used his mouth as a deadly weapon. State v. Neatherlin, 2007-NMCA-035, 141 N.M. 328, 154 P.3d 703.

Conviction or acquittal of proved offense. — Regardless of whether either assault or aggravated assault is included in charge of battery, where there is 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.

Corroboration of victim's testimony unnecessary. — Victim's testimony supported determination that defendant committed battery with a gun and with intent to injure, and did not require corroboration. State v. Tafoya, 1969-NMCA-073, 80 N.M. 494, 458 P.2d 98.

Testimony corroborated. — Defendant's testimony that he threw gun away after leaving scene of burglary and aggravated battery, along with photographs of victim showing facial cuts and abrasions, corroborated victim's testimony that defendant used a gun in commission of crimes. State v. Tafoya, 1969-NMCA-073, 80 N.M. 494, 458 P.2d 98.

Circumstantial evidence was sufficient for a reasonable mind to infer defendant shot the victim with a pellet gun, where there was evidence that defendant came out of his house with a rifle or other gun in his hand and shouted at the victim and his companions to "go somewhere else and play," after they had been shooting off fireworks, and five or ten minutes later the victim was struck with a pellet as a noise was heard from the direction of defendant's house. State v. Stenz, 1990-NMCA-005, 109 N.M. 536, 787 P.2d 455, cert. denied, 109 N.M. 562, 787 P.2d 842.

Sufficient evidence. — Evidence that defendant jumped on the victim's leg and shattered it was sufficient to support defendant's conviction for aggravated battery. State v. Garcia, 2009-NMCA-107, 147 N.M. 150, 217 P.3d 1048, cert. denied, 2009-NMCERT-008, 147 N.M. 395, 223 P.3d 940.

Evidence sufficient to support conviction. — Where evidence, though disputed, showed that defendant was playing pool with several persons, that an argument began and that in the resulting altercation defendant pulled a gun, shot at one person and missed, and shot at another and hit him in the leg, held that it was sufficient to support a verdict of aggravated battery. State v. Santillanes, 1974-NMCA-092, 86 N.M. 627, 526 P.2d 424.

Evidence for felony conviction. — Where the victim testified that she was hit on the head three times with an object which she described as "very hard" and it appeared from the record that following the attack she was taken to the hospital and six stitches were required to close the wound on her head, this evidence sufficiently established an aggravated battery under Subsection C. State v. Turner, 1970-NMCA-024, 81 N.M. 450, 468 P.2d 421, cert. denied, 81 N.M. 506, 469 P.2d 151.

There was substantial evidence to support the charge since the evidence established that the defendant acted in a way that would have likely resulted in great bodily harm or even death to the victim, despite the lack of evidence of such harm. State v. Dominguez, 1993-NMCA-042, 115 N.M. 445, 853 P.2d 147, cert. denied, sub nom., Ortega v. State, 115 N.M. 409, 852 P.2d 682 (1993).

Sufficient evidence. — Since the victims testified that the two defendants intruded into their home, beat and kicked the husband, and dragged both him and his wife around the house in search of money, this evidence sufficiently established an aggravated battery under Subsection A. State v. Ibarra, 1993-NMCA-040, 116 N.M. 486, 864 P.2d 302, cert. quashed, 117 N.M. 744, 877 P.2d 44 (1994), and cert. denied, 513 U.S. 1157, 115 S. Ct. 1116, 130 L. Ed. 2d 1080 (1995).

Evidence that the defendant stabbed or slashed the victim with a knife constituted evidence upon which the jury could find that the defendant committed the offense of aggravated battery; also, the trial court could properly find that the defendant's acts of repeatedly stabbing the victim constituted circumstances surrounding the offense, warranting enhancement of the defendant's sentence. State v. Fuentes, 1994-NMCA-158, 119 N.M. 104, 888 P.2d 986, cert. denied, 119 N.M. 168, 889 P.2d 203 (1995).

Evidence of mayhem insufficient. — Under former law conviction of mayhem was not sustained by proof of an assault and a blow which cut prosecuting witness' lip, requiring some stitches, but resulting in no permanent injury or disfigurement. Court would take notice of such lack of evidence even though defendant failed to preserve proper exceptions. State v. Raulie, 1936-NMSC-039, 40 N.M. 318, 59 P.2d 359 (decided under prior law).

IV. DOUBLE JEOPARDY.

Lesser included offense. — Where defendant was charged with felony aggravated battery for using his mouth as a deadly weapon, evidence was presented that tended to establish the lesser included offense, and the only difference between misdemeanor aggravated battery and felony aggravated battery was whether defendant used his mouth as a deadly weapon, defendant was entitled to a jury instruction on the lesser include offense. State v. Neatherlin, 2007-NMCA-035, 141 N.M. 328, 154 P.3d 703.

Double jeopardy. — Where defendant pushed and punched the victim and after a third person knocked the victim down, the defendant jumped on the victim, shattering the victim's leg, defendant's acts were not distinct and defendant's convictions for aggravated battery and misdemeanor battery violated the double jeopardy clause. State v. Garcia, 2009-NMCA-107, 147 N.M. 150, 217 P.3d 1048, cert. denied, 2009-NMCERT-008, 147 N.M. 395, 223 P.3d 940.

Defendant's convictions for aggravated battery with a deadly weapon and attempted murder arising out of unitary conduct did not violate the double jeopardy clause. State v. Armendariz, 2006-NMSC-036, 140 N.M. 182, 141 P.3d 526.

It was not double jeopardy to try defendant on charge of aggravated battery when lesser charge of attempt was dismissed prior to trial, and no issue as to double punishment or merged offenses was involved. State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150.

Convictions for accessory to assault with intent to commit a violent felony, accessory to aggravated battery with great bodily harm, and accessory to false imprisonment did not violate the constitutional prohibition against double jeopardy. State v. Carrasco, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075.

Defendant's right to freedom from double jeopardy was not violated by punishment for attempted first degree murder, aggravated battery with a deadly weapon, and criminal sexual penetration. State v. Traeger, 2000-NMCA-015, 128 N.M. 668, 997 P.2d 142, aff'd in part, rev'd in part on other grounds, 2001-NMSC-022, 130 N.M. 618, 29 P.3d 518.

Defendant's convictions for both attempted first degree murder and aggravated battery did not constitute double jeopardy. State v. Vallejos, 2000-NMCA-075, 129 N.M. 424, 9 P.3d 668, cert. denied, 129 N.M. 385, 9 P.3d 68.

Defendant's convictions of aggravated battery and shooting at or from a motor vehicle do not violate double jeopardy. State v. Dominguez, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563.

No merger with assault with intent to commit violent felony. — The double jeopardy clause does not prohibit sentencing for both assault with intent to commit a violent felony murder and for aggravated battery with a deadly weapon; one offense does not subsume the other and other indicia of legislative intent suggests an intent to punish separately. State v. Cowden, 1996-NMCA-051, 121 N.M. 703, 917 P.2d 972, cert. denied, 121 N.M. 644, 916 P.2d 844.

Aggravated assault is lesser included offense. — Aggravated assault by use of a threat with a deadly weapon is a lesser included offense of aggravated battery. State v. DeMary, 1982-NMSC-144, 99 N.M. 177, 655 P.2d 1021.

Merger with robbery. — Aggravated battery merges with a robbery offense when a defendant's intent to take the victim's purse includes an intent to injure the victim. State v. Gammil, 1989-NMCA-005, 108 N.M. 208, 769 P.2d 1299, overruled in part on other grounds, State v. Fuentes, 119 N.M. 104, 888 P.2d 986, cert. denied, 119 N.M. 168, 889 P.2d 203.

No merger with armed robbery. — Offense of aggravated battery did not merge with the armed robbery. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Separate punishment for armed robbery and aggravated battery is consistent with legislative intent and does not constitute double jeopardy. State v. Fuentes, 1994-NMCA-158, 119 N.M. 104, 888 P.2d 986, cert. denied, 119 N.M. 168, 889 P.2d 203. .

Aggravated battery lesser included offense of attempted murder. — In a prosecution for attempted murder, the trial court properly instructed the jury on aggravated battery as a lesser included offense at the state's request, because the elements of the lesser crime were a subset of the elements of the charged crime and, further, the defendant could not have committed the greater offense in the manner charged in the indictment without also committing the lesser offense. State v. Meadors, 1995-NMSC-073, 121 N.M. 38, 908 P.2d 731.

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

Concept inapplicable. — The concept of lesser included offenses is not involved in a prosecution for armed robbery and aggravated battery because either offense can be committed without committing the other offense. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Separate punishments intended. — The legislature intended to create separately punishable offenses between shooting at or from a motor vehicle and aggravated battery. State v. Dominguez, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563.

V. JURY INSTRUCTIONS.

When instruction on battery required. — 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 prosecution for aggravated battery, lesser offense of simple battery may necessarily be included in court's charge to jury only in the event there is some evidence which would justify a conviction of the lesser offense. State v. James, 1966-NMSC-110, 76 N.M. 376, 415 P.2d 350.

There was no evidence to support a finding that defendant did not intend to injure victim, and therefore the trial court did not err in refusing to give an instruction on simple battery, which is a lesser included offense of aggravated battery. State v. Pettigrew, 1993-NMCA-095, 116 N.M. 135, 860 P.2d 777, cert. denied, 116 N.M. 71, 860 P.2d 201.

Instruction must be tendered. — Alleged error of court in failing to instruct on lesser included offense of simple battery in prosecution for aggravated battery was not properly before appellate court for review where no instruction on lesser offense was ever submitted to the trial court. State v. James, 1966-NMSC-110, 76 N.M. 376, 415 P.2d 350.

Instruction not warranted. — Where defendant, convicted of aggravated battery, admitted that he had pistol in his possession at time of fight with which he shot victim and that he intended to hit victim with it, instruction on lesser included offense was not warranted. State v. Jaramillo, 1971-NMCA-057, 82 N.M. 548, 484 P.2d 768.

Instructions erroneous. — In a prosecution for aggravated battery with a deadly weapon, since there was a finding of sufficient evidence to support jury instructions on self-defense and defense of another, the instruction on the charged offense was erroneous because it did not include the essential element of unlawfulness, and the error was not cured by separate instructions on self-defense and defense of another, and the instructions on self-defense and defense of another were erroneous because they did not clearly place the burden of proof on the state. State v. Acosta, 1997-NMCA-035, 123 N.M. 273, 939 P.2d 1081, cert. quashed, 124 N.M. 312, 950 P.2d 285.

Instructing on intent. — Subsection C of this section requires an "intent to injure" and where requested instruction referred to "a specific intent to commit an aggravated battery," this would have been misleading to the jury and was properly denied. State v. Vasquez, 1971-NMCA-182, 83 N.M. 388, 492 P.2d 1005.

Defendant need not intend particular result. — In a prosecution for aggravated battery, the defendants requested the following instruction, which was properly refused: "A defendant may not be held guilty as aider and abettor for independent act of another person, even though same victim was assaulted by both, since sharing of criminal intent is absent." The evidence demonstrated that the defendants and the principal defendant did not act independently of each other, even if the defendants did not intend or foresee the stabbing of the victim by the principal defendant. State v. Dominguez, 1993-NMCA-042, 115 N.M. 445, 853 P.2d 147, cert. denied, sub nom., Ortega v. State, 115 N.M. 409. 852 P.2d 682 (1993).

Material element of offense. — In instruction defining the material elements of crime in this section, one of the elements to be proved beyond a reasonable doubt was that defendant inflicted great bodily harm. State v. Chavez, 1971-NMCA-030, 82 N.M. 569, 484 P.2d 1279, cert. denied, 82 N.M. 562, 484 P.2d 1272.

General instruction superfluous. — An instruction generally defining aggravated battery was not needed to guide the jury and was superfluous where the trial court instructed the jury as to the material elements of the aggravated battery elements of the aggravated battery charge. State v. Urban, 1974-NMCA-046, 86 N.M. 351, 524 P.2d 523.

Allegedly inconsistent instruction not jurisdictional error. — Defendant's claim that instruction defining aggravated battery covered three alternatives and thus was inconsistent with the specific charge of aggravated battery by use of a deadly weapon did not amount to jurisdictional error. State v. Urban, 1974-NMCA-046, 86 N.M. 351, 524 P.2d 523.

Inconsistent instruction not fundamental error. — In conviction for aggravated battery, where the evidence was clear that a deadly weapon was used, even if the giving of general definition of aggravated battery was error, it did not shock the conscience to let defendant's conviction stand, and there was no basis for applying the doctrine of fundamental error. State v. Urban, 1974-NMCA-046, 86 N.M. 351, 524 P.2d 523.

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

For annual survey of New Mexico law relating to constitutional law, see 12 N.M.L. Rev. 191 (1982).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 6 Am. Jur. 2d Assault and Battery §§ 48, 49.

Danger or apparent danger of death or great bodily harm as condition of self-defense in prosecution for assault as distinguished from prosecution for homicide, 114 A.L.R. 634.

Danger or apparent danger of great bodily harm or death as condition of self-defense in civil action for assault and battery, personal injury or death, 25 A.L.R.2d 1215.

Pocket or clasp knife as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault, robbery, or homicide, 100 A.L.R.3d 287.

Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery, 7 A.L.R.4th 607.

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

Criminal assault or battery statutes making attack on elderly person a special or aggravated offense, 73 A.L.R.4th 1123.

Admissibility of expert opinion stating whether a particular knife was, or could have been, the weapon used in a crime, 83 A.L.R.4th 660.

Sufficiency of bodily injury to support charge of aggravated assault, 5 A.L.R.5th 243.

Adequacy of defense counsel's representation of criminal client - conduct occurring at time of trial regarding issues of diminished capacity, intoxication, and unconsciousness, 78 A.L.R.5th 197.

Adequacy of defense counsel's representation of criminal client - pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness, 79 A.L.R.5th 419.

6A C.J.S. Assault and Battery § 72.

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