Can Provocation or Justifiable or Excusable Cause be a Defense to Assault and Battery with a Dangerous Weapon in Oklahoma

Can "Provocation" or "Justifiable or Excusable Cause" be a Defense to Assault and Battery with a Dangerous Weapon under Oklahoma Law?
By Glen R. Graham, Tulsa Criminal Defense Attorney, http://www.glenrgraham.com/

Under the Oklahoma Uniform Jury Instructions, OUJI-CR-4-13, in the comments section therein is a discussion about the strange but true case of Eckhart v. State, 1956 OK CR 6, 292 P.2d 451, which provides the answer to the above question: "yes."

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The Oklahoma Uniform Jury Instructions, OUJI-CR-4-13, provides that under the definition of the elements of the offense for assault/battery/(assault and battery) with a dangerous weapon by use of a firearm, under section 4 - that it be committed "without justifiable or excusable cause."

Further, section 5, requires that it be committed "with intent to injure the person." That the defendant used a particular device in a manner likely to produce injury or great bodily harm does not eliminate the necessity of proving that the defendant specifically intended to inflict such corporal harm.

For example, in Eckhart v. State, ibid, the defendant fired a shot at some laborers working on the roof of the building in which the defendant lived. The events leading up to the altercation included the facts that the workmen had disconnected the defendant's air conditioning on the previous day, and that they had begun working on the room at 5:30 a.m. on the day of the shooting. The defendant was awakened when chunks of plaster were dislodged from his ceiling and struck him as he lay in bed. One of the workmen stood only a few feet from the defendant as the defendant fired the shot.

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The court reduced the defendant's conviction for assault with a dangerous weapon to simple assault, on the ground that the defendant's intent to injure someone was not established by these circumstances. At most, the court believed that the defendant was provoked by the incidents of the past day and fired a shot in order to scare the workmen and to demonstrate his grievance.

In Eckhart, ibid, the court held: "Rather, we think the accused was provoked and fired the shot in the air to scare the workmen and it certainly had that effect. The evidence was sufficient to show the accused was guilty of a simple assault. The maximum punishment for assault is 30 days in the county jail and a fine of $100 which we feel would be a just sentence in this case."

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In Eckhart, the court reversed his conviction for assault with a dangerous weapon with a 9 month jail sentence and modified his sentence, and found him guilty of simple assault, a misdemeanor, and imposed a sentence of 30 days in jail and a fine of $100 dollars.