Commonwealth v. Henson

Rule of Law:

An assault by means of a dangerous weapon can be established by proof of apparent ability to inflict harm, even if the defendant has a secret or undisclosed inability to do so, such as using a gun loaded only with blank cartridges.

Facts:

• On December 24, 1968, Theodore Finochio, an off-duty police officer, was in a gasoline station when the defendant and a female companion entered.
• After Finochio asked the defendant to quiet his companion who was using profane language, the defendant pulled out a revolver.
• The defendant aimed the revolver at Finochio’s stomach and said, “Why should I?” causing Finochio to believe he was about to be killed.
• As the defendant turned to leave, Finochio identified himself as a police officer and drew his own weapon.
• The defendant then turned back and fired his revolver at Finochio at least five times during a chase.
• The defendant's revolver was designed to fire .22 caliber blanks and was loaded with them at the time.
• Although the revolver's barrel had been modified, making it potentially capable of firing a projectile if loaded in a specific way, it was not so loaded during the incident.
• The defendant knew the revolver was a "phony" gun loaded with blanks, but Finochio reasonably believed it was a deadly weapon firing live ammunition.

Procedural Posture:

• The defendant was charged in trial court on two complaints: 1) assault on Theodore Finochio by means of a dangerous weapon and 2) carrying a loaded revolver without a valid license.
• A jury convicted the defendant on both complaints.
• The defendant's motion for a directed verdict on the assault charge was denied by the trial court judge.
• The defendant appealed both convictions to the Supreme Judicial Court of Massachusetts, the state's highest court.
• Before the Supreme Judicial Court, the defendant waived his appeal on the charge of carrying the revolver, leaving only the appeal of the assault conviction for the court to decide.