Commonwealth v. Albert J. Henson

Facts

On December 24, 1968, Theodore Finochio, an off-duty police officer, was at a gasoline station in Boston. 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. The defendant 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 in 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.” The defendant then turned to go out of the station, holding the revolver at his side. Finochio took out his revolver, pointed it at the defendant and said, “Hold it there, buddy. I am a police officer.” The defendant, who was then partially out of the door, turned and fired two shots at Finochio from a distance of about five feet. Finochio fired back and chased the defendant out to the street. They exchanged further shots in that chase which lasted about twenty to thirty seconds until the defendant was captured, subdued and handcuffed, and his revolver taken from his hand. Later, it was revealed that the defendant was shooting blanks.

The defendant was convicted of assault by means of a dangerous weapon. He appealed, arguing that the court should have granted a direct verdict because his conduct could not, and did not, constitute assault by means of a dangerous weapon since the shells in the revolver at the time were blanks. He equates his position to that of a person using a revolver which is capable of firing a bullet, but which is in fact not loaded, or to that of a person using a toy or imitation revolver which in fact cannot fire a bullet.