Commonwealth v. Henson

259 N.E.2d 769 (1970)

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Nature of the Case

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Facts

Finochio, an off-duty police officer, was at a gasoline station. He was not in uniform, but he had his service revolver in a holster under his coat. Another man and woman also were in the station at that time. D and a female companion entered the station and the female used profane language. Finochio asked the defendant to keep the woman quiet. The defendant reached into his pocket, pulled out a revolver, aimed it at Finochio's stomach and said: 'Why should I?' Finochio put up his hands and said 'No reason at all.' He described his state of mind at that time by saying 'I thought I was done for.' D then turned to go out of the station, holding the revolver at his side. Finochio took out his revolver, pointed it at D and said, 'Hold it there, buddy. I am a police officer.' D turned and fired two shots at Finochio from a distance of about five feet. Finochio fired back and chased D out to the street. They exchanged further shots in that chase which lasted about twenty to thirty seconds until D was captured. D fired five or more shots, and Finochio fired six, one of which struck D. D's gun was loaded with blanks. The revolver had been manufactured with a plug in the barrel, but that plug had been bored out before it was used by D. D was convicted of assault with a dangerous weapon. D appealed.

D contends that his conduct could not, and did not, constitute the aggravated offense of assault by means of a dangerous weapon since the shells in the revolver at the time were blanks.