Assault by prisoner consists of intentionally:

A. placing an officer or employee of any penal institution, reformatory, jail or prison farm or ranch, or a visitor therein, in apprehension of an immediate battery likely to cause death or great bodily harm;

B. causing or attempting to cause great bodily harm to an officer or employee of any penal institution, reformatory, jail or prison farm or ranch, or a visitor therein; or

C. confining or restraining an officer or employee of any penal institution, reformatory, jail or prison farm or ranch, or a visitor therein, with intent to use such person as a hostage.

Whoever commits assault by prisoner is guilty of a third degree felony.

History: 1953 Comp., § 40A-22-16, enacted by Laws 1963, ch. 303, § 22-16.

Cross references. — For definition of great bodily harm, see 30-1-12 NMSA 1978.

For assault, generally, see 30-3-1 to 30-3-3 NMSA 1978.

For kidnapping, see 30-4-1 NMSA 1978.

This section and 30-22-24 NMSA 1978 relate to two different crimes. — Although it is possible for the same set of facts to fall within the ambit of this section and 30-22-24 NMSA 1978, relating to battery upon a peace officer, they do not deal with the same crime, but with two different crimes. State v. Rhea, 1980-NMSC-033, 94 N.M. 168, 608 P.2d 144.

Merger of this section and false imprisonment. — The charge of assault by a prisoner should not be merged for sentencing purposes with the charge of false imprisonment where the facts supporting the two charges are not identical. Merger is also inappropriate in such a case because the statute prohibiting assault and the statute prohibiting false imprisonment advance two distinct social norms. State v. Gibson, 1992-NMCA-017, 113 N.M. 547, 828 P.2d 980, cert. denied, 113 N.M. 524, 828 P.2d 957.

Jailers as peace officers. — Legislature did not exclude jailers from definition of peace officers: a jailer is an officer in the public domain, charged with the duty to maintain public order. State v. Rhea, 1980-NMSC-033, 94 N.M. 168, 608 P.2d 144.

Evidence sufficient. — Evidence introduced to show how the defendant and his cohorts carefully orchestrated a prison escape was sufficient for the jury to find that the defendant planned, anticipated, and intended the assault and false imprisonment of a peace officer during the escape. The defendant need not have known the peace officer's name, but only that the victim would be a peace officer. State v. Gibson, 1992-NMCA-017, 113 N.M. 547, 828 P.2d 980, cert. denied, 113 N.M. 524, 828 P.2d 957.

Evidence of great bodily harm. — Evidence that after throwing hot coffee at the sheriff, defendant attempted to choke him with one hand while he tried to get the sheriff's gun with the other hand, along with the sheriff's testimony that while being choked his breath was practically cut off and he realized that "it was he or I, one or the other," was evidence that the choking created a high probability of death, which is one part of the definition of great bodily harm, and justified instructing the jury to consider whether defendant caused great bodily harm under this section. State v. Hollowell, 1969-NMCA-105, 80 N.M. 756, 461 P.2d 238.

Acquittal of charge for which confined no defense. — Despite the fact that at the time he committed assault defendant was confined in the city jail on a charge for which he was later found not guilty, conviction imposed, upon his guilty plea, for assault by prisoner was not violative of defendant's constitutional rights. Chavez v. State, 1969-NMCA-085, 80 N.M. 560, 458 P.2d 812.