State v. Cushman, 112-73

Citation133 Vt. 121,329 A.2d 648
Decision Date12 December 1974
Docket NumberNo. 112-73,112-73
PartiesSTATE of Vermont v. Charles CUSHMAN.
CourtUnited States State Supreme Court of Vermont

Dale O. Gray, State's Atty., for the State.

Swainbank, Gensburg & Morrissette, St. Johnsbury, for defendant.

Before BARNEY, C. J., SMITH, KEYSER and DALEY, JJ., and SHANGRAW, C. J. (Ret.) assigned.

SMITH, Justice.

The defendant was charged by information and warrant with the offense of recklessly engaging in conduct which placed another person in danger of death or serious bodily injury. 13 V.S.A. § 1025. On June 1, 1973, the defendant was tried in the District Court of Vermont, Unit No. 4, Caledonia Circuit, by a jury and was found guilty. Defendant's appeal from this conviction has been timely taken to this Court.

The appeal of the defendant is mainly premised on what he claims to be a wrongful interpretation by the trial court of the statute under which he was charged. This challenged interpretation was the source of allegedly erroneous jury instructions. Because of the points raised by the defendant, we believe it essential to quote the statute in its entirety for a proper understanding of the questions presented, as well as the resolution thereof.

§ 1025. Recklessly endangering another person

A person who recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury shall be imprisoned for not more than one year or fined not more than $1,000.00 or both. Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded.

Taken in the light most favorable to the State, the prevailing party below, the factual situation is not complicated. Trooper McDonald came to the home of the defendant in the evening of January 1, 1973. The visit was in response to a call made to the State Police by a Mrs. Aldrich, who lived with the defendant at his home on Bible Hill. Mrs. Aldrich was disturbed, because of her young daughter, by the presence of an individual brought to the house by the defendant, and for whom defendant had furnished bail. An argument ensued between the defendant and the trooper, the details of which are not relevant to this decision. The evidence of the State was that the defendant, during this argument, took a firearm from a rack in the kitchen and pointed it in the direction of the police officer. It was the contention of the defendant, who took the stand in his own behalf, that the weapon was of antique vintage and not loaded.

The first point briefed by the defendant is that the trial court committed error by instructing the jury that it need not find that the weapon used by the defendant was loaded in order to convict him. What defendant argues, as we understand it, is that he has not been charged with assault, but with placing another in danger of death or bodily injury. The claim of the defendant is that in order to convict him under 13 V.S.A. § 1025 it is essential that actual power to commit bodily injury must rest in the actor's hand, and the apparent power which is adequate for the finding of an assault is inadequate under the above statute.

We agree with the defendant that 13 V.S.A. § 1025 does not charge a simple assault, the definitions of which are set forth in 13 V.S.A. § 1023. The Legislature, in its general revision of the laws relative to breach of the peace in the 1971 Adjourned Session of the General Assembly, set forth a separate offense directly concerned with the use of firearms under § 1025. There is a clearly expressed legislative intent in the second sentence of this provision that even if the actor ahs knowledge, or is presumed to have knowledge, that the gun he is pointing in the direction of another is unloaded, the recklessness of his conduct is presumed from such action, as is the fact that he is placing the other person in danger of death or bodily injury.

We are aware of the principle cited by the defendant that, in interpreting a penal statute, the interpretation most favorable to the accused must be the one adopted. State v. Baldwin, 109 Vt. 143, 148, 194 A. 372 (1937). But the fundamental rule is to ascertain and give effect to the intention of the Legislature, State v. Severance, 120 Vt. 268, 274, 138 A.2d 425, 429 (1957), State v. Baldwin, supra, and 'construction of a statute leading to an absurd consequence must be avoided, if possible.' State v. Severance, supra.

It can hardly be doubted that a person threatened by another with a firearm has no way of ascertaining whether or not such weapon is loaded, but the state of mind of the victim is irrelevant under this statute. The danger of death or of bodily injury is equally acute, no matter what knowledge the actor may possess on the loaded of unloaded condition of the firearm which he points in the direction of the victim. To accept the defendant's contention that the Legislature, in enacting this statute, only intended to prevent the pointing of a loaded weapon at another but not to proscribe the pointing of an unloaded weapon would require us to construe the statute to lead to an absurd result. The most dangerous weapon is the 'unloaded gun', and the Legislature's intent was to proscribe the pointing of all firearms at others.

The second point briefed by the defendant is that the court erred by instructing the jury that it need only find that the weapon was aimed in the general direction of the trooper. The Information and...

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7 cases
  • State v. Roy
    • United States
    • Vermont Supreme Court
    • January 13, 1989
    ...to the defendant and, at the same time, must avoid interpretations which defeat the purpose of the statute. State v. Cushman, 133 Vt. 121, 123, 329 A.2d 648, 650 (1974). We have found scienter elements in other statutes where none was expressly written into the statute. See State v. Audette......
  • State v. Messier
    • United States
    • Vermont Supreme Court
    • July 19, 1985
    ...available for further cross-examination, or to be called as a defense witness, the error, if any, was harmless. State v. Cushman, 133 Vt. 121, 125, 329 A.2d 648, 651 (1974). Defendant's second claim in this section is that the court erred in admitting evidence of a prior "bad act" of defend......
  • State v. Meier, Cr. N
    • United States
    • North Dakota Supreme Court
    • March 31, 1988
    ...in actual danger of death or serious bodily injury, not mere apparent danger. 1 State v. McLaren, supra, overruled State v. Cushman, 133 Vt. 121, 329 A.2d 648 (1974), where a majority opinion held that under the reckless endangerment statute it is irrelevant whether a weapon is loaded or un......
  • State v. Messier, 2003-482
    • United States
    • Vermont Supreme Court
    • August 19, 2005
    ...was inserted, whether a firearm pointed at another person was loaded or otherwise operational was irrelevant. State v. Cushman, 133 Vt. 121, 124, 329 A.2d 648, 650 (1974). In Cushman, we noted that in enacting the statute, "the Legislature's intent was to proscribe the pointing of all firea......
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