Statement of Assignment
You have asked me to prepare a legal memorandum addressing the question raised in the Commonwealth v. Jones – Is there any sufficient basis to support the assault by means of a dangerous weapons charge?
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- Issue I: Is dangerous weapons charge lawful under the G.L. c. 265, § 15A, Assault and Battery with Dangerous Weapon?
- Issue II: Under the case law Commonwealth v. Shea, 38 Mass. App. Ct. 7, 644 N. W.2d 244 (1995), is lightning to be considered as a weapon of such kind?
Issue I: Yes. The G.L. c. 265, § 15A, Assault and Battery with Dangerous Weapon states that “Whoever, by means of a dangerous weapon, commits assault and battery upon another shall be punished …”
Issue II: No. According to the Commonwealth v. Shea, 38 Mass. App. Ct. 7, 644 N. W.2d 244 (1995), and to the Proposed Criminal Code of Massachusetts c. 263, § 3(i) “any firearm or other weapon…material or substance, either animate or inanimate, which…is capable of producing death or serious bodily injury” is considered to be a dangerous weapon provided that the elements of assault are present or touching of them, at least a slight one, constituted the assault.
Mr. Jones has resorted to violence in his relations with his wife Elizabeth Steward. On April 5, 1990, during one of the family quarrels, Mr. Jones tied his wife to the lightning pole of their cottage at the moment when the storm was at its peak. Shouting that the lightning was going to fry his wife, Mr. Jones returned home. As a result, the lightning did not strike the pole, and the Commonwealth filed a lawsuit against Mr. Jones claiming that the dangerous weapon he used was the lightning.
The case under consideration is governed by the rule of law G.L. c. 265, § 15A, Assault and Battery with Dangerous Weapon. According to this rule of law, the charge against Mr. Jones was absolutely lawful and grounded. The lighting strike could cause death or serious bodily injuries to the defendant’s wife. Moreover, this case was the result of an incident of domestic violence which is a complementary condition to this incident.
The lightning can not be considered as a dangerous weapon with the references to Commonwealth v. Shea, Commonwealth v. Appleby and the Proposed Criminal Code of Massachusetts c. 263, § 3(i). In the case of Commonwealth v. Shea, the ocean was claimed to be a dangerous weapon but the court of law reversed the dangerous weapon assault charge deciding that ocean can not be considered a dangerous weapon according to General Laws c. 265, § 15A.
General Laws c. 265, § 15A does not recognize the ocean to be a dangerous weapon referring to the cases of Commonwealth v. Shea and Commonwealth v. Appleby. Accordingly, the statement of the state that lightning was a dangerous weapon in the Commonwealth v. Jones case is an insufficient and groundless claim. Further on, the dangerous weapon assault charge against Mr. Jones is unlawful as far as lightning is not a dangerous weapon as such.
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