N.M. Stat. § 30-3-5 (2026)

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 mouth 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.

Sufficient evidence of aggravated battery. — There was sufficient evidence to
convict defendant of two counts of aggravated battery where the evidence established
that defendant, while under the influence of methamphetamine and heroin, drove across
a parking lot at a high rate of speed, struck two individuals in her path causing severe
injuries, and fled the scene, and where defendant's interview with the police contained
numerous admissions that she was driving the white vehicle in question, that she knew
she struck at least one person with it, that she then left the parking lot without stopping
to render assistance, and that she abandoned the vehicle at the end of a residential
street about a half-mile away. State v. Holtsoi, 2024-NMCA-042, cert. denied.

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.