People ex rel. Mahone v. Martin

• Decision Date: 01 May 1957
• Parties: The PEOPLE of the State of New York, ex rel. Rufus MAHONE, Appellant, v. Walter B. MARTIN, as Warden of Attica Prison, Attica, New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 327

162 N.Y.S.2d 327

3 A.D.2d 968

The PEOPLE of the State of New York, ex rel. Rufus MAHONE, Appellant, v. Walter B. MARTIN, as Warden of Attica Prison, Attica, New York, Respondent.

Supreme Court, Appellate Division, Fourth Department.

May 1, 1957.

Rufus Mahone, in pro. per.

Louis J. Lefkowitz, Atty. Gen. (Frederick T. Devlin, Albany, of counsel), for respondent.

Before McCURN, P. J., and VAUGHAN, WILLIAMS, BASTOW and GOLDMAN, JJ.

PER CURIAM.

The sole question here is whether a conviction under Ch. 265, Sec. 15A of the Annotated Laws of Massachusetts would be a felony in New York State. We believe that a conviction under the above mentioned section would require the same essential elements as a conviction under Sec. 242(4) of the Penal Law of New York. 'A dangerous weapon' under the Massachusetts statute is equivalent to 'a weapon, or other instrument or thing likely to produce grievous bodily harm' under the New York Statute. See Commonwealth v. Farrell, 322 Mass. 606, 614, 615, 78 N.E.2d 697, 702. It is argued that the absence of words similar to 'willfully and wrongfully' in the Massachusetts statute is fatal to the use of the foreign conviction for the purpose of our multiple offender statute (Penal Law, § 1941). The Massachusetts statute does not define the elements of a criminal assault. In the absence of statutory definition, their courts apparently resort to common law definitions of the words used by the legislature. Commonwealth v. Webster, 59 Mass. 295, 303. The common law cases are explicit in requiring proof of willfulness to sustain a conviction of assault. Commonwealth v. Randall, 70 Mass. 36, 38, 39; See also Commonwealth v. Adams, 114 Mass. 323. The cases reported since the passage of the Massachusett statute speak in terms of wanton or reckless conduct. See Commonwealth v. McCan, 277 Mass. 199, 203, 178 N.E. 633, 634, 78 A.L.R. 1208. They hold that 'Wanton or reckless conduct is the legal equivalent of intentional conduct'. See Commonwealth v. Sostilio, 325 Mass. 143, 145, 89 N.E.2d 510, 511; Commonwealth v. Welansky, 316 Mass. 383, 401, 55 N.E.2d 902, 911; Commonwealth v. Byard, 200 Mass. 175, 177, 178, 86 N.E. 285, 20 L.R.A.,N.S., 814. Thus the Massachusetts law meets the requirements of People v. Olah, 300 N.Y. 96, 89 N.E.2d 329, 19 A.L.R.2d 219, and appellant was properly sentenced as a second offender.

Order affirmed without costs of this appeal to either party.

All concur.