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VOLUME 7 - CHAPTER 77
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77.7 Conditional Assault

    77.7.2 Conditional Assault: Miscellaneous Issues

    77.7.2.1 Conditional Assault: Requirement That The Threat Be Communicated

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 7 - CHAPTER 77

RATIONALE: Without an explanatory instruction the jury may not understand that a threat which is not communicated cannot form the basis for an assault.

POINTS AND AUTHORITIES: See Commonwealth v. Delgado (MA 1975) 326 NE2d 716, 718.

    See also FORECITE National™ 77.7.3.1 [Conditional Assault: Lack Of Intent To Immediately Enforce Performance Of The Condition As Defense Theory].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

    Words do not constitute an assault unless the words convey information which would cause reasonable apprehension of immediate bodily harm.

[See Commonwealth v. Delgado (MA 1975) 326 NE2d 716, 718; cf. Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 6-3 [Assault] (Lexis, 2nd ed. 1999).]

SAMPLE INSTRUCTION # 2 [Conditional Assault: Attempted Battery]:

    Defendant is charged with assault based on the act of __________ (insert conditional act upon which assault is predicated; e.g., pointing a loaded gun at another person). In order to convict the defendant of assault based upon this act, the prosecution must prove beyond a reasonable doubt that the defendant committed the alleged act and at the time the act was committed: