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When an actual battery is committed it includes an assault.
A victim was shot by defendant Isaac Jacobs; however, the victim did not see the defendant shoot him and only realized he had been shot after he felt an unusual condition in his left hand. He then saw the defendant and hurried into his home where the defendant followed him and struck him and others with the gun. Defendant was convicted of assault resulting in serious bodily injury in violation of 18 U.S.C.S. § 113(f), but was acquitted of assault with a dangerous weapon. Defendant claimed on appeal that because his victim did not see him there was no violation of § 113(f) because the assault had to occur prior to the serious bodily injury.
Under the circumstances, should the defendant’s conviction under 18 U.S.C.S. § 113(f) be reversed?
The court agreed with defendant and held that the fear of a second shot after seeing defendant constituted a second assault, however, it was a subsequent simple assault and would not have resulted in the serious bodily injury for which defendant was convicted. However, the court affirmed defendant's conviction because an actual battery was clearly proved and such proof supported a conviction for the included offense of assault. Further, the court held that nevertheless, inconsistent or compromise verdicts were permissible and legitimate.