Com. v. Tarrant

• Decision Date: 31 July 1974
• Citation: 2 Mass.App.Ct. 483,314 N.E.2d 448
• Parties: COMMONWEALTH v. Michael TARRANT.
• Court: Appeals Court of Massachusetts

Page 448

314 N.E.2d 448

2 Mass.App.Ct. 483

COMMONWEALTH v. Michael TARRANT.

Appeals Court of Massachusetts, Suffolk.

Argued March 19, 1974.

Decided July 31, 1974.

Margaret A. Burnham, Boston, for defendant.

Thomas F. Reilly, Asst. Dist. Atty. (Robert J. McKenna, Jr., Legal Asst. Dist. Atty., with him), for the Commonwealth.

Before ROSE, GOODMAN and GRANT, JJ.

ROSE, Justice.

The defendant was indicted for armed robbery and for entering a dwelling house and committing an assault therein while armed with dangerous weapons (a knife and a dog). He was found guilty on both indictments after a jury trial held pursuant to G.L. c. 278, §§ 33A--33G. With regard to the robbery indictment, the defendant has assigned as error certain instructions which were given to the jury and the denial of his motion for a directed verdict. Other assignments were not argued in the defendant's brief and are deemed waived. Rule 1:13 of the Appeals Court, 1 Mass. App. --- (1972). We do not consider those assignments of error which relate to the defendant's indictment for entering a dwelling and committing an armed assault therein as that charge was placed on file. Commonwealth v. Locke, 338 Mass. 682, 684, 157 N.E.2d 233 (1959); Commonwealth v. Flowers, --- Mass.App. ---, ---, ^a 298 N.E.2d 898 (1973).

The evidence was as follows. On November 23, 1972, between 8:00 and 8:30 A.M., the defendant entered the bedroom of an apartment at 4 Bucknam Street in Roxbury occupied by one David Weinberg. The defendant carried a 'kitchen-type' knife and was accompanied by a mediumsized German shepherd dog. After pointing the knife at Weinberg and ordering him not to move, the defendant picked up a radio and took approximately sixty dollars from Weinberg's wallet. During this time the dog wandered about the room, at one point approaching to within a 'couple of feet' of the mattress on which Weinberg lay. The defendant ordered the dog, which answered to the name of 'King,' to come to him, and thd dog obeyed. The defendant then asked Weinberg if he had another radio, warning him that 'If you have another radio and you aren't telling me about it, I'll kill you.' Soom afterwards the defendant left with the dog, taking with him a bicycle and a hammer in addition to the radio and the cash.

The jury were instructed that an instrumentality could be found to be a 'dangerous weapon' if it reasonably appeared capable of inflicting bodily harm. ¹ The defendant argues that this charge was erroneous; that because simple robbery involves the use of 'force and violence, or . . . (an) assault and putting in fear' (G.L. c. 265, § 19), conviction of armed robbery must require a finding that the accused possessed an instrument dangerous in fact, not merely in appearance.

It was said in Commonwealth v. Henson, 357 Mass. 686, 693, 259 N.E.2d 769, 774 (1970), that 'the public peace and order is affected by and dependent upon what is reasonably apparent, and not upon secret fact or reason rendering the assailant incapable or accomplishing . . . (a) battery. . . . (This reasoning) applies with even greater force to a case of apparent ability to accomplish a battery attempted or threatened by means of a firearm. The threat to the public peace and order is greater, and natural reactions thereto by the intended victim and others may be more sudden and violent than in cases where no weapon is involved.'

Although Commonwealth v. Henson involved a prosecution for assault with a dangerous weapon (a revolver loaded with cartridges which the defendant, but no one else, knew to be blanks) we think that the principle set forth in that decision is applicable also to the crime of armed robbery. General Laws c. 265, § 17, ² is intended to punish not merely those robbers who possess a weapon dangerous in fact, but also those who possess a weapon which gives the appearance of being dangerous, since the fear felt by victims and bystanders and the danger to public order resulting from their possible reactions are the same in either case. We conclude that the instructions on this point were correct. ³ See Commonwealth v. Nickologines, 322 Mass. 274, 277, 76 N.E.2d 649 (1948). Our conclusion that the threatened use of an apparently dangerous weapon is sufficient to make the offense more serious than simple robbery is adopted in the Proposed Criminal Code of Massachusetts c. 266, § 16(b). See Commentary, Model Penal Code. Tentative Draft Number 11, p. 71.

The defendant has also assigned as error the instruction that an animal could constitute a 'dangerous weapon' for purposes of the armed robbery statute. ⁴ The defendant does not suggest why the statute should not be interpreted to encompass the use of dogs in the commission of robberies, but stresses the apparent lack of precedent on this point.

A dangerous weapon is 'any instrument or instrumentality so constructed or so used as to be likely to produce death or great bodily harm.' Commonwealth v. Farrell, 322 Mass. 606, 614--615, 78 N.E.2d 697, 702 (1948). See also Anderson Wharton's Criminal Law and Procedure, § 361. There can be little doubt that a dog (in this case a medium sized German shepherd) used for the purpose of intimidation or attack falls within this definition. That dogs can inflict severe injuries is recognized in our law. See, e.g., Koller v....