FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 7 - CHAPTER 77
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77 Table of Contents
77.5 Assault With Intent To Murder
77.5.2 Assault With Intent To Murder: Miscellaneous Issues
77.5.2.1 Assault With Intent To Commit Murder: Requirement Of Intent To Kill
77.5.2.2 Assault With Intent To Commit Murder: Improper To Define Mens Rea As Intent To Murder
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 7 - CHAPTER 77
77.5.2.1 Assault With Intent To Commit Murder: Requirement Of Intent To Kill
RATIONALE: Without specific instruction the jury may not understand that intent to kill is an element of assault with intent to commit murder.
POINTS AND AUTHORITIES: By definition, assault with intent to commit murder should require an intent to kill. For example, the federal courts have uniformly required that specific intent to kill be proven when the defendant is charged with assault with intent to commit murder under 18 USC 13(a)(1). (See, e.g., U.S. v. Perez (7th Cir. 1994) 43 F3d 1131, 1138; see also LaFave & Scott, Substantive Criminal Law (West, 1986) Chap. 7 (1986).) Accordingly, assault with intent to commit murder cannot be proven by reckless or wanton conduct. (Perez, 43 F3d at 1138; see also People v. Avena (CA 1996) 13 C4th 394, 416-17 [53 CR2d 301].)
In sum, a specific instruction should "be given in order to highlight that the intent required for this offense is one to kill." (People v. Haggart (MI 1985) 370 NW2d 345, 352.)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
USE NOTE: It is improper to instruct the jury that the offense requires intent to murder rather then intent to kill. (See FORECITE National™ 77.5.2.2 [Assault With Intent To Commit Murder: Improper To Define Mens Rea As Intent To Murder].)
RELATED FEDERAL MODEL INSTRUCTION:
See generally, FORECITE National™ 77.5.1.2 [Assault With Intent To Murder: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
The defendant is charged with the crime of assault with intent to murder. Any person who shall assault another with intent to commit the crime of murder is guilty of this crime.
The defendant pleads not guilty to this charge. To establish this charge the prosecution must prove each of the following elements beyond a reasonable doubt:
First, that the defendant tried to physically injure another person.
Second, that he had the present ability to cause an injury, or at least believed that he had the present ability.
Third, that at the time he committed the assault the defendant intended to kill the complainant, under circumstances that did not justify, excuse or mitigate the crime.
[See People v. Haggart (MI 1985) 370 NW2d 345, 352.]
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 7 - CHAPTER 77
77.5.2.2 Assault With Intent To Commit Murder: Improper To Define Mens Rea As Intent To Murder
PRACTICE NOTE: Assault with intent to commit murder requires specific intent to kill and cannot be proven by reckless or wanton conduct. (See FORECITE National™ 77.5.2.1 [Assault With Intent To Commit Murder: Requirement Of Intent To Kill.]) Hence, it is potentially confusing to instruct the jury that the defendant had to have the specific intent to murder, rather the jury was required to find a specific intent to kill. (People v. Avena (CA 1996) 13 C4th 394, 416-17 [53 CR2d 301].)
RELATED FEDERAL MODEL INSTRUCTION:
See generally, FORECITE National™ 77.5.1.2 [ Assault With Intent To Murder: Federal Circuit Model Instructions And Notes].