Attempted Assault

I’ve had a couple of questions lately about whether attempted assault is a crime. Nationally, there appears to be a split of authority on this issue. 6 Am. Jur. 2d Assault and Battery § 11 (noting that “[t]he authorities are in conflict whether an attempt to commit an assault is a criminal offense”); Marjorie A. Shields, Attempt to Commit Assault as Criminal Offense, 93 A.L.R.5th 683 (2001) (collecting cases). In North Carolina, the court of appeals has twice held that the answer is no, because the crime of assault itself includes an attempt to injure. State v. Barksdale, 181 N.C. App. 302 (2007) (reversing conviction for attempted assault with a deadly weapon on a government officer because that offense would be an “attempt to attempt” and so does not exist); State v. Currence, 14 N.C. App. 263 (1972) (trial judge properly refused to accept a verdict of attempted assault with a deadly weapon). Cf. State v. Hewett, 158 N.C. 627 (1912) (noting, in a slightly different context, that “one cannot be indicted for an attempt to commit a crime where the crime attempted is in its very nature an attempt”). As an interesting aside, many, many appellate cases, published and unpublished, involve convictions for attempted assaults, and treat those convictions without comment. In some instances, this may simply be a matter of the courts declining to pass on issues not raised by the parties. The apparent prevalence of such convictions, however, suggests that the rule of Barksdale and Currence is not [...]