A. Assault with intent to commit a violent felony upon a peace officer consists of any person assaulting a peace officer while he is in the lawful discharge of his duties with intent to kill the peace officer.

B. Whoever commits assault with intent to commit a violent felony upon a peace officer is guilty of a second degree felony.

History: 1953 Comp., § 40A-22-22, enacted by Laws 1971, ch. 265, § 3.

Cross references. — For assault with intent to commit a violent felony, generally, see 30-3-3 NMSA 1978.

For instruction on justifiable homicide, see UJI 14-5171 NMRA.

For instruction on self-defense, see UJI 14-5181 NMRA.

Sufficient evidence. — Where the defendant rapidly accelerated his vehicle toward the police officer who had been pursuing him in a high speed chase after the officer got out of his car and the defendant pointed a rifle or a shotgun at the officer after the defendant had already fired three shots at the officer, the evidence was sufficient to sustain the court's finding that the defendant committed an assault with intent to commit a violent felony upon a peace officer. State v. Demongey, 2008-NMCA-066, 144 N.M. 333, 187 P.3d 679, cert. quashed, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.

Standing to challenge section's validity. — Where defendant was convicted of committing aggravated battery upon peace officer (30-22-25 NMSA 1978), a lesser included offense of this section, defendant's rights under this section were not at issue, despite the fact that it had been charged in the indictment, and he had no standing to challenge its constitutionality. State v. Bojorquez, 1975-NMCA-075, 88 N.M. 154, 538 P.2d 796, cert. denied, 88 N.M. 318, 540 P.2d 248.

Acts constituting one offense. — An assault arising from a series of three successive shots fired at a single victim, not separated by a significant amount of time, and arising from a single, continuous intent constituted one offense, and conviction of the defendant on two counts of assault violated his double jeopardy rights. State v. Handa, 1995-NMCA-042, 120 N.M. 38, 897 P.2d 225, cert. denied, 119 N.M. 771, 895 P.2d 671.

Lawful discharge of duties jury question. — Whether police officers were in the lawful discharge of their duties when they were shot by the defendant is a question for the jury to decide. State v. Brown, 1979-NMCA-038, 93 N.M. 236, 599 P.2d 389, cert. quashed, 93 N.M. 172, 598 P.2d 215, and cert. denied, 444 U.S. 1084, 100 S. Ct. 1041, 62 L. Ed. 2d 769 (1980).

Law reviews. — For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63 (1974).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Malice or intent to kill where killing is by blow without weapon, 22 A.L.R.2d 854.

Homicide: acquittal on homicide charge as bar to subsequent prosecution for assault and battery or vice versa, 37 A.L.R.2d 1068.