Com. v. Slaney

• Decision Date: 08 November 1962
• Parties: COMMONWEALTH v. Richard P. SLANEY (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 919

185 N.E.2d 919

345 Mass. 135

COMMONWEALTH v. Richard P. SLANEY (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 1, 1962.

Decided Nov. 8, 1962.

Ruth I. Abrams, Asst. Dist. Atty. (Roger E. Gordon, Asst. Dist. Atty., with her), for the Commonwealth.

Alfred P. Farese, Everett, for defendant.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

KIRK, Justice.

The defendant Slaney was found guilty on two indictments, one charging him with assault and battery by means of a dangerous weapon on Mary Bowen and the other charging him with assault by means of a dangerous weapon on Joseph A. DeVincentis. Both offences, it was alleged, were committed at Cambridge on August 3, 1961. Trial was had in the Superior Court without jury. G.L. c. 263, § 6, amended. The cases, made subject to G.L. c. 278, §§ 33A-33G, come to us upon appeals accompanied by seven assignments of error which for our purposes may be grouped into four. The defendant contends that the judge committed error: (1) in his refusal to rule that the defendant was not guilty as a matter of law on the indictment charging assault with a dangerous weapon on DeVincentis; (2) in his orders and rulings during the defendant's cross-examination of the witness Bowen; (3) in his denial of requests for rulings relating to the weight of the evidence; and (4) in his denial of the defendant's motion for a new trial.

Consideration of the first assignment of error requires that we state the facts which the judge could find. For a year and half to two years before the alleged offence, the defendant, a married man, and Mrs. Bowen, a married woman separated from her husband, had frequently been in one another's company. Shortly before the alleged offence there was a change in Mrs. Bowen's attitude toward the defendant. On the night of August 2, 1961, the defendant went to the Oxford Grille, a restaurant and bar in Cambridge owned by DeVincentis, where Mrs. Bowen was employed as a waitress. He persistently asked Mrs. Bowen to wait on him and to see him after work. She refused. The defendant remained on the premises. Toward closing time (midnight) DeVincentis asked the defendant not to bother Mrs. Bowen and to leave the place. The defendant left. At 1:15 a. m. when DeVincentis and Mrs. Bowen left the restaurant and were crossing the street toward a lot where DeVincentis's car was parked, a car driven by the defendant emerged from a nearby alley at high speed and stopped in front of the entrance to the lot. The defendant got out of his car, approached Mrs. Bowen and DeVincentis, and demanded that Mrs. Bowen go with him. During the talk which followed, DeVincentis explained that he merely was going to take Mrs. Bowen to a nearby taxi stand. The defendant 'threw a punch,' which just touched the top of DeVincentis's head. The defendant then pulled out a gun, pointed it 'right at' DeVincentis, and advised him to start praying because he was going to shoot Mrs. Bowen, DeVincentis, and himself. The defendant was seven or eight feet away from DeVincentis. Mrs. Bowen pleaded with him to put the gun away. DeVincentis told him he was 'silly,' and tried to move closer to the defendant in order to maneuver into a position to take the gun away from him. The defendant backed away and, while doing so, the gun was discharged. The bullet pierced Mrs. Bowen's handbag and dress. She felt a breeze on her right leg but she was not wounded. Police on foot patrol heard the shot, went to the scene, disarmed the defendant, and placed him under arrest.

DeVincentis testified that he was not afraid at any time; that when he tried to get closer to the defendant to maneuver to get the gun he was not afraid that he was going to be shot. However, he did not think it was a joke; he was trying to devise some plan to get the gun; he did not go up to him and grab the gun because the defendant would have 'shot and let go.'

The defendant's contention that he was entitled to a finding of not guilty on the charge of assault with a dangerous weapon on DeVincentis is based on his thesis that fear on the part of the victim is an essential element of the crime of assault, and that DeVincentis's testimony conclusively eliminates that element from the Commonwealth's case. We feel obliged to deal rather fully with this contention of the defendant because of the disposition which the judge made of one of the defendant's requests for rulings. The defendant's request number 14 was a paragraph of six sentences wherein the following two sentences appeared: '* * * To constitute an assault, the person assaulted must be put in actual fear and terror. Where there is no actual fear or terror there can be no assault. * * *' The judge granted request number 14 'as a correct statement of law,' and appended to his ruling a special finding to the effect that the defendant fired the rovolver and that immediately prior thereto and 'at the time of the firing * * * both Mrs. Bowen and * * * DeVincentis were in a state of apprehension.'

1. With respect to the crime of assault, as is frequently the case in our statutes relating to common law crimes, the Legislature has prescribed the penalty for the crime but has not defined the crime itself. G.L. c. 265, § 13A. For the definition of the crime of assault, resort must be had to the common law. Commonwealth v. Webster, 5 Cush. 295, 303.

(a) The defendant, in support of the proposition that proof of fear on the part of the victim is necessary to sustain a conviction of the crime of assault at common law, cites the definition given by a text writer. ¹ This definition expresses a concept of common law assault which, as applied to the criminal law, is at variance with that held by the overwhelming number of authorities, both old and recent, who define the essentials of a common law assault in such familiar terms as: an attempt (or offer) to do bodily harm to another by force and violence; or simply, an attempt to commit a battery. ² The words 'coupled with a present ability and present intention' are frequently added to the former definition. The definition cited by the defendant has been specifically criticised, ³ and its concept has been expressly or impliedly rejected when the question has been presented in other jurisdictions. ⁴ So far as we are aware it has not been incorporated in the statutory definition for assault in the criminal codes of any of the States. Finally, obvious practical considerations militate against acceptance of the defendant's contention. The criminal law is designed primarily to preserve the public peace. The imperturbability or fortitude of a victim, or the unawareness of an intended victim, should not afford a defence to the criminal prosecution of the wrongdoer. The guilt or innocence of a person charged with assault 'depends entirely upon what the wrongdoer does and intends and not at all upon what the other apprehends, or does not apprehend.' Perkins on Criminal Law (1957) 89. It follows from what we have said that in this Commonwealth neither fear, nor terror nor apprehension of harm is an essential ingredient of the common law crime of assault.

(b) It is urged upon us, nevertheless, that our own decisions give literal support to the defendant's contention. In particular, the defendant cites Commonwealth v. White, 110 Mass. 407, and Ross v. Michael, 246 Mass. 126, 140 N.E. 292. In the latter, a civil action for assault, the court applied to the case a summary adaptation, in negative terms, of the holding in Commonwealth v. White. ⁵ The court then quoted with approval the charge of the judge to the jury on the facts of the case then before it. ⁶ We think that the argument of the defendant rests upon a misapprehension of the issue which was before the court in each of the cases cited, with the result that there is a misconception of the holdings, and a misapplication of the language used to the case now under consideration. In Commonwealth v. White, 110 Mass. 407, a criminal case, the defendant contended that the gun with which he threatened the complainant was not loaded, that he was consequently lacking in the present ability to do the harm threatened, and therefor should be found not guilty. In Ross v. Michael, 246 Mass. 126, 140 N.E. 292, a civil case, the defendant contended that the threatening words which accompanied the overt act were clearly conditional, that they revealed that he was lacking in any present intention to do harm, and therefore he could not be held liable for an assault. The trial judge in each case rejected the defendant's contention and in substance instructed the jury that if, notwithstanding the defendant's present inability to do harm in the one case, and notwithstanding the defendant's disclaimer of a present intent to do harm in the other case, the complainant revertheless had a well grounded and reasonable belief that he was in immediate danger of personal injury at the hands of the defendant, a verdict that an assault had been committed should be returned. In each case the conduct of the defendant was menacing by objective standards. In each case it was left to the jury to determine if, as the result of the menacing conduct, fear of immediate bodily harm was reasonably engendered in the victim. In the civil case fear, or at least apprehension, ⁷ was essential to recovery whether the threat was conditional or absolute. In the criminal case the court held that in the circumstances it was relevant that the objectively menacing conduct of the defendant, despite an actual inability to do harm, produced the fear of harm which it...