State v. Patterson
Decision Date | 02 August 1977 |
Docket Number | No. 2908,2908 |
Parties | STATE of New Mexico, Plaintiff-Appellee, v. Raymond PATTERSON, Defendant-Appellant. |
Court | Court of Appeals of New Mexico |
The dispositive issue is whether the aggravated assault offense of which defendant was convicted was a lesser offense included within the offense charged in the indictment.
The indictment charged a violation of § 40A-3-3, N.M.S.A. 1953 in that defendant assault the victim with intent to kill. Section 40A-3-3, supra, reads:
The trial court instructed the jury on aggravated assault with a deadly weapon. The aggravated assault statute, § 40A-3-2, N.M.S.A. 1953 reads:
The State asserts that aggravated assault was a lesser offense included within the charge of assault with intent to kill. The State's argument is based on § 40A-3-2(C), supra. We do not consider whether § 40A-3-2(C), supra, is a lesser offense included within § 40A-3-3, supra, because that is not an issue in this case. No issue as to § 40A-3-2(C), supra, was submitted to the jury. The aggravated assault submitted to the jury was § 40A-3-2(A), supra an assault committed with a deadly weapon.
The State's position, both at trial and on appeal, has been that the aggravated assault was a lesser offense included within the assault with intent to kill under the facts of the case. That is not the basis for determining whether an offense is a lesser included offense. In determining whether there is a lesser included offense "we look to the offense charged in the indictment." State v. Medina, 87 N.M. 394 534 P.2d 486 (Ct.App.1975). Thus, Criminal Procedure Rule 44(d) refers to "an offense necessarily included in the offense charged". (Our emphasis.) State v. Kraul, 90 N.M. 314, 563 P.2d 108 (Ct.App.1977); see State v. Sandoval, 90 N.M. 260, 561 P.2d 1353 (Ct.App.1977).
For a lesser offense to be included within the greater, it must be necessarily included. To be necessarily included, the greater offense cannot be committed without also committing the lesser. State v. Kraul, supra; State v. Sandoval, supra; State v. Medina, supra.
Assault with intent to kill can be committed without use of a deadly weapon; thus, aggravated assault with a deadly weapon was not a lesser included offense. Co...
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