Austin v. State, 75-1717
| Decision Date | 23 July 1976 |
| Docket Number | No. 75-1717,75-1717 |
| Citation | 336 So.2d 480 |
| Parties | Eugene AUSTIN, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Phillip A. Hubbart, Public Defender, and H. T. Smith, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
Before PEARSON and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
The defendant was tried upon an information charging him with aggravated assault pursuant to Fla.Stat. § 784.021. He was found guilty by a jury, so adjudicated and sentenced to five years with two and a half years withheld followed by two years probation. The record reveals that the 'deadly weapon' 1 used by the defendant was spray from a can containing a chemical substance commonly designated as 'mace.' The controlling question is whether, under the circumstances of this case, spray from a can of 'mace' will support a finding by a jury that a deadly weapon was used in an assault. We hold that the evidence does not support the charge of aggravated assault and we reverse the judgment and sentence with directions to enter a judgment and sentence for assault pursuant to Fla.Stat. § 784.011.
The defendant has in the past performed services for parents claiming the wrongful detention of children. In the present instance, he was employed by a father who claimed the right of custody of a child alleged to have been unlawfully removed by the mother from the state of Missouri. Defendant located the child in Miami, Florida, and having been refused the aid of law enforcement agencies, 2 he and the father forceably took the child from the mother. In the process of abduction, the defendant seized the mother, pulled her head back and sprayed chemical 'mace' from a can into her mouth. The evidence that 'mace' would not, under such circumstances, produce death or serious bodily harm was uncontroverted. The expert produced by the State testified that serious damage was unlikely. His testimony does not lend itself to any reasonable inference that the substance as used can be deadly.
A deadly weapon has generally been defined to be one likely to produce death or great bodily injury. Goswick v. State, Fla.1962, 143 So.2d 817. The question of whether a particular weapon involved is to be classed as 'deadly' is a factual question to be resolved by the jury. The jury's finding must be based upon evidence or reasonable inferences therefrom of the likelihood to produce death or great bodily injury. See State v. Nixon, Fla.App.1974, 295 So.2d 121. The jury may consider the character of the assault and the way the weapon is used. Cf. Rogan v. State, Fla.App.1967, 203 So.2d 24.
In Weaver v. State, Fla.App.1969, 220 So.2d 53, the District Court of Appeal, Second District, considered a question in which a determination of the character of mace as a weapon was necessary. A police officer responded to a report of a domestic disturbance at the defendant's home. After some investigation, the police officer attempted to enter the home apparently to see whether anyone was seriously injured. He was denied admission by the defendant and after he either sprayed or threatened to spray the defendant with chemical mace, the defendant shot him. Thereafter, having been charged...
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Landrum v. Sec'y Dep't of Corr.
...weapon is a factual question to be answered by the jury); Young v. State, 33 So. 3d 151, 153 (Fla. 4th DCA 2010); Austin v. State, 336 So. 2d 480, 481 (Fla. 3d DCA 1976) (question of whether particular weapon involved in assault is "deadly weapon" capable of supporting conviction for aggrav......
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Handy v. State
...United States v. Harris, 44 F.3d 1206 (3d Cir.), cert. denied, 514 U.S. 1088, 115 S.Ct. 1806, 131 L.Ed.2d 731 (1995); Austin v. State, 336 So.2d 480 (Fla.Dist.Ct.App.1976). We distinguish Harris because the Third Circuit did not hold that mace could never be treated as a dangerous weapon; t......
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People v. Sandel
...Not a Dangerous Instrument.Courts that have considered this issue have not spoken with one voice. In Austin v. State, 336 So.2d 480-81 (Florida Court of Appeal, 3rd Dist. 1976) an intermediate appellate court found the evidence did not support a jury verdict of aggravated assault, but only ......
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People v. Blake
...have found chemical substances did not qualify as dangerous weapons because of the peculiar circumstances of the case. For example, in Austin v. State,16 the expert produced by the state testified spraying mace into a victim's mouth would not produce death or serious bodily harm. Because th......
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Nonlethal self-defense, (almost entirely) nonlethal weapons, and the rights to keep and bear arms and defend life.
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