Commonwealth v. Appleby (1980)

But make no mistake—the decision below gravely erred on both grounds. 1 As to “dangerous,” the court below held that a weapon is “dangerous per se” if it is “ ‘designed and constructed to produce death or great bodily harm’ and ‘for the purpose of bodily assault or defense.’ ” 470 Mass., at 779 , 26 N. E. 3d, at 692 (quoting Commonwealth v. Appleby, 380 Mass. 296, 303 , 402 N. E. 2d 1051, 1056 (1980)).

Commonwealth v. Appleby, 380 Mass. 296 , 402 N.E.2d 1051, 1059 (1980) (internal citations omitted).

No specific intent to injure is required; the intent element is satisfied if the defendant had a “general intent to do the act causing injury.” Id. at 1059.

Commonwealth v. Appleby, 380 Mass. 296 , 402 N.E.2d 1051, 1059 (1980).

Laws ch. 265, § 13A.9 According to Papantoniadis, simple (quoting Commonwealth v. Appleby, 402 N.E.2d 1051, 1056 (Mass. 1980)). 9 The district court also applied the felony-offense enhancement based on strangulation under Mass. Gen.

Instead, they protested that their spraying devices were not "dangerous weapon[s],” see Barrett, 436 N.E.2d at 1223 ; see also Von- *426 berg, 2007 WL 4097332 , at *2-3; Lord, 770 N.E.2d at 524 -25—with "dangerous weapon” defined either as (a) an inherently dangerous item, i.e., an item "designed and constructed to produce death or great bodily injury,” see Barrett, 436 N.E.2d at 1223 (quoting Commonwealth v. Appleby, 380 Mass. 296 , 402 N.E.2d 1051, 1056 (1980)), or as (b) …

See Porro, 939 N.E.2d at 1165-66 ; Commonwealth v. Appleby, 380 Mass. 296 , 402 N.E.2d 1051, 1059 (1980).

Appleby , 380 Mass, at 307, 402 N.E.2d 1051 .

Commonwealth v. Appleby, 380 Mass. 296 , 402 N.E.2d 1051, 1056 (1980).

Under the common law of Massachusetts, dangerous weapons include those objects that are dangerous per se — “designed and constructed to produce death or great bodily harm” and “for the purpose of bodily assault or defense,” Commonwealth v. Appleby, 380 Mass. 296, 303 (1980) — as well as those objects that are dangerous as used — items that are not dangerous per se but “become dangerous weapons because they ‘are used in a dangerous fashion.’ ” Commonwealth v. Tevlin, 433 Mass…

We conclude that there is no conflict between the reasoning of Lawrence, supra, and our prior decisions holding that consent is not a defense to the crimes charged, see Commonwealth v. Mahar, 430 Mass. 643, 652-653 (2000) (armed home invasion), and Commonwealth v. Appleby, 380 Mass. 296, 310 (1980) (assault and battery by means of dangerous weapon), and the judge appropriately instructed the jury on consent.

Thus, the jury should have been instructed not that the knife was inherently dangerous, but that *30 they must determine whether it was dangerous as used. 17 See Commonwealth v. Delaney, 442 Mass. 604, 615 (2004) (because “[a] pocket knife of the type the defendant described is not a dangerous weapon per se, as it is not ‘designed for the purpose of bodily assault or defense’ ” [citation omitted], judge should have instructed jury to determine whether knife was dangerous as …

See Commonwealth v. Cruz, supra at 195 , *845 quoting Commonwealth v. Appleby, supra (“the question whether a weapon is dangerous as used is always one for the fact finder”).

When not otherwise defined, 5 the term “dangerous weapon” embraces objects that are dangerous per se, i.e., objects that are “designed and constructed to produce death or great bodily harm” — objects, in other words, that are “designed for the purpose of bodily assault or defense,” Commonwealth v. Appleby, 380 Mass. 296, 303 (1980) — and objects that are dangerous as used, i.e., “those things that become dangerous weapons because they are ‘used in a dangerous fashion.’ ” Com…

“Our statutes do not define the term ‘dangerous weapon,’ but we have consistently said that there are things that are dangerous per se and those that are dangerous as used.” Com monwealth v. Tevlin, 433 Mass. 305, 310 (2001). 6 See Commonwealth v. Appleby, 380 Mass. 296, 303 (1980); Commonwealth v. Sexton, 425 Mass. 146, 149 (1997).

At trial, the judge had instructed the jury that “concrete pavement” could be considered a dangerous weapon if the jury found that it was “used in such a way that [it was] capable of causing death or seriousf] bodily injury to a person.” While the Appeals Court agreed that “ordinarily the determination whether an object that is not dangerous per se is a dangerous weapon under § 15A is a question of fact for the jury,” Commonwealth v. Sexton, 41 Mass. App. Ct. 676, 679 (1996)…

Commonwealth v. Appleby, 380 Mass. 296, 306-307 (1980).

To prove assault and battery by means of a dangerous weapon, the Commonwealth was required to establish that the defendant committed an "intentional, unjustified touching, however slight, by means of [a] dangerous weapon." Commonwealth v. Appleby, 380 Mass. 296, 306 (1980).

Commonwealth v. Appleby, 380 Mass. 296, 303, 307 (1980).

Gov’t Resp. 10, Webb; Reply 14, Webb; see also United States v. Hudson, 823 F.3d 11 , 17 n.8 (1st Cir. 2016) (Massachusetts ABDW may be committed recklessly); Commonwealth v. Burno, 396 Mass. 622, 625 , 487 N.E.2d 1366 (1986) (Assault and battery includes “the intentional and unjustified use of force upon the person of another, however slight, or the intentional commission of a wanton or reckless act (something more than gross negligence) causing physical or bodily injury to…

Commonwealth v. Appleby, 380 Mass. 296, 307 (1980).

Commonwealth v. Appleby, 380 Mass. 296, 303 (1980), citing Commonwealth v. Farrell, 322 Mass. 606, 615 (1948).

L. c. 265, § 15A; Commonwealth v. Appleby, 380 Mass. 296, 308 (1980).

In Commonwealth v. Appleby, 380 Mass. 296, 304 (1980), we stated the applicable rule that “[w]eapons which are not dangerous per se, but which may be used in a dangerous fashion, may also be ‘dangerous weapons.’ . . .

To sustain these convictions, the Commonwealth had to prove, among other elements, that "there [was] a touching, however slight," and that "that touching [was] by means of the weapon." Commonwealth v. Appleby, 380 Mass. 296, 308 (1980). "[T]he 'touching may be . . . indirect, as by setting in motion some force or instrumentality' that causes the victim to be touched, such as where a defendant . . . intentionally or recklessly drives his vehicle into a vehicle occupied by the…

Beyond that, as a matter of law the victim could not have consented to being beaten with a dangerous weapon, see Commonwealth v. Appleby, 380 Mass. 296, 311 (1980).

We then "consider the state of the evidence at the close of all the evidence, to determine whether the Commonwealth's position as to proof deteriorated after it closed its case." O' Laughlin, supra, quoting Sheline, supra. "An assault and battery is the intentional and unjustified use of force upon the person of another, however slight." Commonwealth v. Colas, 486 Mass. 831 , 841 (2021), quoting Commonwealth v. Appleby, 380 Mass. 296, 306 (1980).

See also Commonwealth v. Appleby, 380 Mass. 296 , 307 n.5 (1980) ("the question whether a weapon is dangerous as used is always one for the fact finder").

Because the summary judgment record showed that the plaintiff had no prospect of establishing at trial that the defendants (1983), quoting Commonwealth v. McCan, 277 Mass. 199, 203 (1931) ("An assault and battery is the intentional and unjustified use of force upon the person of another, however slight"). 7 "[Section] 15A requires an assault by means of a dangerous weapon, . . . and also an intentional, unjustified touching, however slight, by means of that dangerous weapon.…

"Weapons which are not dangerous per se, but which may be used in a dangerous fashion, may also be 'dangerous weapons.'" Commonwealth v. Appleby, 380 Mass. 296, 304 (1980).

Because a riding crop is not inherently dangerous and is designed only “to inflict temporary pain” rather than “death or serious bodily harm,” Commonwealth v. Appleby, 402 N.E.2d 1051, 1056 (Mass. 1980), the question is whether Gehon “used the object in such a way that it became . . .” a dangerous instrument.

L. c. 265, § 15A(b), the Commonwealth was required to prove that the defendant engaged in an “intentional and unjustified use of force upon the person of another, however slight.” Commonwealth v. Appleby, 380 Mass. 296, 306 (1980), quoting from Commonwealth v. McCan, 277 Mass. 199, 203 (1931).

Significantly, the crime described in § 15A requires “an intentional, unjustified touching, however slight, by means of [a] dangerous weapon.” Commonwealth v. Appleby, 380 Mass. 296, 306 , 402 N.E.2d 1051, 1058 (1980).

Commonwealth v. Appleby, 380 Mass. 296, 308 (1980).

Massachusetts, like most States, does not recognize an individual’s ability to consent to “such violence that bodily harm is likely to result.” Commonwealth v. Appleby, 380 Mass. 296, 311 (1980), quoting from Commonwealth v. Farrell, 322 Mass. 606, 620 (1948).

Commonwealth v. Appleby, 380 Mass. 296, 303-304 (1980).

Commonwealth v. Appleby, 380 Mass. 296, 306 (1980).

L. c. 265, § 15A (c) (i); Commonwealth v. Appleby, 380 Mass. 296, 306-307 (1980).

Commonwealth v. Appleby, 380 Mass. 296, 303-304 (1980).

The crime “expresses society’s desire to punish the use of an instrument which is capable of producing serious bodily harm,” Commonwealth v. Appleby, 380 Mass. 296, 306-307 (1980), a societal goal that necessarily subsumes the predicate that the victim not be an entity.

Although apparently no federal court has determined whether § 15B(b) has as an element the use, attempted use, or threatened use of physical force against the person of another, Massachusetts courts have found that the, “thrust of the offense ‘of assault with a dangerous weapon, is an outward demonstration of force, and § 15B requires ... apparent ability to injure.’ ” Massachusetts v. Cataldo, 423 Mass. 318 , 319 n. 1, 668 N.E.2d 762 (1996) (quoting Massachusetts v. Appleby…

Commonwealth v. Appleby, 380 Mass. 296, 309-311 (1980).

That the judge’s single cross-reference to an earlier portion of her charge did not repeat that entire earlier portion would not cause the jury to ignore one of the identified elements. 12 The defendant also claims error in the judge’s instruction that “a knife does constitute a dangerous weapon.” A pocket knife of the type the defendant described is not a dangerous weapon per se, as it is not “designed for the purpose of bodily assault or defense,” Commonwealth v. Appleby, …

Relying on certain passages appearing in Commonwealth v. Appleby, 380 Mass. 296, 308 (1980), the defendant argues that the trial judge erred in failing to instruct the jury that, in order to find the defendant guilty of assault and battery with a dangerous weapon, the jury must find — since a sneaker is not inherently dangerous — an “intent on the part of the defendant to use . . . [his sneaker] as a dangerous weapon” (emphasis added).

L. c. 265, § 18C, implies, as a matter of public policy, that an occupant of a dwelling cannot consent to allow an armed intruder like the defendant inside to commit an assault. 8 Cf. Commonwealth v. Appleby, 380 Mass. 296, 310 (1980) (public policy underlying G.

Where deadly force 1 is involved — it becomes a question for the fact finder whether the defendant’s use of the fireplace tool constituted deadly or nondeadly force, see Commonwealth v. Cataldo, 423 Mass. 318, 322-323 (1996); cf. Commonwealth v. Appleby, 380 Mass. 296, 304 (1980) — the second two prongs of the test are the same, but a defendant must show that she had a reasonable fear that she was “in imminent danger of death or serious bodily harm, and that no other means w…

L. c. 265, § 14. 3 That portion provides for criminal responsibility for “whoever, with intent to maim or disfigure, assaults another person with a dangerous weapon, substance or chemical, and by such assault disfigures, cripples or inflicts serious or permanent physical injury upon such person.” As the Commonwealth correctly points out, mayhem requires evidence of a specific intent to maim or disfigure, whereas assault and battery by means of a dangerous weapon requires pro…

Accord Commonwealth v. Farrell, 322 Mass. 606, 614-615 (1948); Commonwealth v. Appleby, 380 Mass. 296, 304 (1980); Commonwealth v. Sexton, 425 Mass. 146, 149 (1997).

See Commonwealth v. Tarrant, 367 Mass. 411, 416 (1975); Commonwealth v. Appleby, 380 Mass. 296, 303-307 (1980); Commonwealth v. Salone, 26 Mass. App. Ct. 926 , 929- 930 (1988); Commonwealth v. Graves, 35 Mass. App. Ct. at 88-89 .

Compare State v. Butler, 325 So. 2d 55 (Fla. App. 1976); Annot., 43 A.L.R.2d 490 (1955). 5 See also Commonwealth v. Squire, 1 Met. 258, 259 (1840) (“[T]he question whether the state of the structure, and its progress towards completion, be such as to constitute it a building, is a question of fact, to be submitted to the jury under proper instructions from the court”); Commonwealth v. Appleby, 380 Mass. 296, 304 (1980) (“Weapons which are not dangerous per se, but which may …