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See Paragraph 60 (Article 134 - General Article).

Elements.

(1) That the accused assaulted a certain person;

(2) That, at the time of the assault, the accused intended to kill (as required for murder or voluntary manslaughter) or intended to commit rape, robbery, sodomy, arson, burglary, or housebreaking; and

(3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Explanation.

(1) In general. An assault with intent to commit any of the offenses mentioned above is not necessarily the equivalent of an attempt to commit the intended offense, for an assault can be committed with intent to commit an offense without achieving that proximity to consummation of an intended offense which is essential to an attempt. See paragraph 4.

(2) Assault with intent to murder. Assault with intent to commit murder is assault with specific in-tent to kill. Actual infliction of injury is not necessary. To constitute an assault with intent to murder with a firearm, it is not necessary that the weapon be discharged. When the intent to kill exists, the fact that for some unknown reason the actual consummation of the murder by the means employed is impossible is not a defense if the means are apparently adapted to the end in view. The intent to kill need not be directed against the person assaulted if the assault is committed with intent to kill some person. For example, if a person, intending to kill Jones, shoots Smith, mistaking Smith for Jones, that person is guilty of assaulting Smith with intent to murder. If a person fires into a group with intent to kill anyone in the group, that person is guilty of and assault with intent to murder each member of the group.

(3) Assault with intent to commit voluntary man-slaughter. Assault with intent to commit voluntary manslaughter is an assault committed with a specific intent to kill under such circumstances that, if death resulted there from , the offense of voluntary man-slaughter would have been committed. There can be no assault with intent to commit involuntary man-slaughter, for it is not a crime capable of being intentionally committed.

(4) Assault with intent to commit rape. In assault with intent to commit rape, the accused must have intended to overcome any resistance by force, and to complete the offense. Any lesser intent will not suffice. No actual touching is necessary, but indecent advances and importunities, however earnest, not accompanied by such an intent, do not constitute this offense, nor do mere preparations to rape not amounting to an assault. Once an assault with intent to commit rape is made, it is no defense that the accused voluntarily desisted.

(5) Assault with intent to rob. For assault with intent to rob, the fact that the accused intended to take money and that the person the accused intended to rob had none is not a defense.

(6) Assault with intent to commit sodomy. Assault with intent to commit sodomy is an assault against a human being and must be committed with a specific intent to commit sodomy. Any lesser intent, or different intent, will not suffice.

Lesser included offenses.

(1) Assault with intent to murder.

(a) Article 128—assault; assault consummated by a battery; assault with a dangerous weapon; assault intentionally inflicting grievous bodily harm

(b) Article 134—assault with intent to commit voluntary manslaughter; willful or careless discharge of a firearm

(2) Assault with intent to commit voluntary man-slaughter.

(a) Article 128—assault; assault consummated by a battery; assault with a dangerous weapon; assault intentionally inflicting grievous bodily harm

(b) Article 134—willful or careless discharge of a firearm

(3) Assault with intent to commit rape or sodomy.

(a) Article 128—assault; assault consummated by a battery; assault with a dangerous weapon

(b) Article 134—indecent assault

(4) Assault with intent to commit burglary.

(a) Article 128—assault; assault consummated by a battery; assault with a dangerous weapon

(b) Article 134—assault with intent to commit housebreaking

(5) Assault with intent to commit robbery, arson, or housebreaking. Article 128—assault; assault consummated by a battery; assault with a dangerous weapon

Maximum punishment.

(1) Assault with intent to commit murder or rape. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.

(2) Assault with intent to commit voluntary man-slaughter, robbery, sodomy, arson, or burglary. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.

(3) Assault with intent to commit housebreaking. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.