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VOLUME 7 - CHAPTER 77
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77.9 Battery

    77.9.2 Battery: Miscellaneous Issues

    77.9.2.1 Battery With Serious Bodily Injury [Reserved]
    77.9.2.2 Spitting As Battery
    77.9.2.3 Intentional Battery: Requirement Of Intent To Apply Unlawful Force
    77.9.2.4 Battery: Whether Criminal Negligence Requirement Is Sufficient

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    77.9.2.1    Battery With Serious Bodily Injury [Reserved]

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PRACTICE NOTE: See Ray v. U.S. (DC 1990) 575 A2d 1196, 1199 [spitting on police officer proved battery and thus supported verdict on lesser offense of assault of the attempted-battery variety].

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.15 [Assault].

See also generally, FORECITE National™ 305.2.3 [Battery].

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RATIONALE: If the charge is predicated on a theory of intentional battery the element of intent to apply unlawful physical force must be specified.

POINTS AND AUTHORITIES: The intentional form of battery requires an intent to apply unlawful physical force upon another person. (See Commonwealth v. Comer (PA 1953) 97 A2d 343, 348 [assault and battery must have been intentional, not accidental or merely negligent]; Park Oil v. Parham (VA 1985) 336 SE2d 531, 534 [assault cannot be done by accident or even as result of negligence]; LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.14-.16 (2d ed. 1986); Model Penal Code § 211.1; but see FORECITE National™ 77.9.2.4 [Battery: Criminal Negligence Requirement].)

    However, proof of intent to do bodily harm is generally not required for simple battery but may be for other forms of battery. (See e.g., People v. Barrage (IL 1994) 645 NE2d 455, 454 [aggravated battery requires intent to cause bodily harm and is general intent crime]; State v. Esher (KS 1996) 922 P2d 1123, 1126 [aggravated battery requires proof that defendant intentionally caused physical contact with another person, and it does not identify or require further particular intent that must accompany prohibited acts]; Commonwealth v. Cabral (MA 1999) 706 NE2d 314, 315 [because assault and battery by means of a dangerous weapon is a general intent crime, there is no requirement that Commonwealth must prove defendant had a specific intent to injure victim]; James v. State (OH 1979) 599 P2d 411, 412 [specific intent is not an element of aggravated assault and battery in that general intent is presumed from criminal act itself, but proof of "intent to do bodily harm" is a necessary element of assault and battery with a dangerous weapon].)

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

USE NOTE: No Intent Required Under Theory Of Unlawful Act Battery. "Some cases have held that, if the defendant’s wrongful conduct is malum in se any injury resulting therefrom is necessarily a battery; whereas, if it is only malum prohibitum, the defendant, to be guilty, must be found to intend injury or to be criminally negligent." [Footnotes omitted.] (LaFave & Scott, Substantive Criminal Law (West, 1986) (West) § 7.15 p. 306.) However, unlawful act battery has been rejected by other cases and is not included in the modern codes. (Id. at 306-7.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.15 [Assault].

See also generally, FORECITE National™ 305.2.3 [Battery].

    Two essential elements of battery, which the prosecution must prove beyond a reasonable doubt, are (1) that the defendant intended to apply unlawful, violent physical force to _____________ (name of alleged victim) and (2) that the defendant knew that, as a result of this force, _____________ (name of alleged victim) would be [violently struck] [suffer a substantially offensive touching].

    If you have reasonable doubt as to whether both of these elements have been proven by the prosecution, you must resolve that doubt in the defendant’s favor and find the defendant not guilty of battery.

[Cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II(B) inst. 4 [Simple Battery Elements] page 124 (South Carolina CLE, 1994).]

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    77.9.2.4    Battery: Whether Criminal Negligence Requirement Is Sufficient

RATIONALE: When the defendant defends a battery charge on a theory of accident, a defense theory instruction may be necessary to assure the jury understands and properly considers the issues it must resolve.

POINTS AND AUTHORITIES: An unintentional touching, even if the result of reckless conduct, is not a battery absent commission of "an act inherently dangerous to others ... with a conscious disregard of human life and safety ...." (See People v. Martinez (CA 1977) 75 CA3d 859, 863 [142 CR 515]; see also Perkins & Boyce, Criminal Law (Foundation Press, 1982) Ch. 2, § 2, Battery, p. 157 ["for battery, as for manslaughter, more is required than ordinary negligence sufficient to support a civil action."].)

    In other words, because battery requires that the defendant act "willfully," the defendant must act with "conscious disregard" of the consequences of the act; i.e., "the perpetrator must be aware of the nature of the conduct and chose to ignore its potential for injury, i.e., act willfully." (People v. Colantuono (CA 1994) 7 C4th 206, 220 [26 CR2d 908].) "Intent includes those consequences which ... are known to be substantially certain to result (regardless of desire)." [Emphasis added.]  (Perkins & Boyce, Criminal Law (Foundation Press, 1982) Ch. 7, § 1(D), p. 835 cited by Colantuono, 7 C4th at 219.) For battery, this requirement is satisfied by proof that the defendant acted with criminal negligence. (See Perkins & Boyce, Criminal Law (Foundation Press, 1982) supra at p. 157; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.15c, pp. 303-04; Wharton's Criminal Law (West, 15th ed. 1993) § 178, p. 416; but see People v. Lara (CA 1996) 44 CA4th 102, 107 [51 CR2d 402] [battery requires general criminal intent and cannot be based on criminal negligence]; People v. Lakeman (MI 1984) 353 NW2d 493, 495 [because the act of touching must be willful, a battery cannot result from criminally negligent behavior].)

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

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.15 [Assault].

See also generally, FORECITE National™ 305.2.3 [Battery].

    A touching is not a battery if it was accidental [and without criminal negligence]. If you have a reasonable doubt whether the defendant intended to touch _______________ (name of alleged victim) [or acted with criminal negligence], you must give the defendant the benefit of that doubt and return a verdict of not guilty.