On December 16, 1978, the defendant and the victim quarrelled at the “Diamond Mine” Lounge in Holyoke. An encounter ensued, in the course of which the defendant bit off a piece of the victim’s left ear. The defendant was indicted for the crimes of mayhem (G. L. c. 265, § 14), and assault and battery by means of a dangerous weapon “to wit, [t]eeth” (G. L. c. 265, § 15A). A Superior Court jury convicted him on both indictments, and he has appealed, assigning as error: (1) the introduction in evidence in connection with the mayhem charge of five photographs showing the piece of the victim’s ear which was bitten off and the condition of the ear after the piece was surgically reattached; and (2) the denial of his motion for a directed verdict on so much of indictment no. 79-705 as charged the *191 use of a dangerous weapon, contending that human teeth cannot constitute a dangerous weapon. We hold that the judge did not abuse his discretion in admitting the photographs but that the motion for a directed verdict should have been allowed as to that portion of the assault and battery indictment that charged the use of teeth as a dangerous weapon.
1. The defendant argues that the photographs lacked evidential value on a material issue because there was other evidence at the trial which adequately described the victim’s injury. He also contends that the prejudicial effect of the photographs far outweighed their probative value and served to distort the jury’s consideration of his testimony (pertaining to the mayhem charge) that he acted in the heat of a fight without specific malicious intent.
The fact that photographs may be inflammatory does not render them inadmissible if they possess evidential value on a material matter.
Commonwealth
v.
Lamoureux,
An abuse of discretion has not been shown in this case. The photographs aided the jury in better understanding the nature of the victim’s injuries
(Commonwealth
v.
Retkovitz,
2. We turn now to the question whether human teeth or parts of the body should be excluded from consideration by the fact finder as instrumentalities which can be used as dangerous weapons in indictments framed under G. L. c. 265, § 15A (inserted by St. 1927, c. 187, § 1). Section 15A punishes assaults and batteries committed by “means of a dangerous weapon” but does not expressly define the term “dangerous weapon.” Instead, the meaning of the term has evolved through case law. Recently in
Commonwealth
v.
Appleby,
First, all the Massachusetts cases which have considered the use of neutral objects as potential weapons in the commission of assault crimes have considered instrumentalities apart from the defendant’s person. The
Farrell, Tarrant
and
Appleby
decisions considered a lighted cigarette, an attack dog, and a riding crop, respectively. Even when the act of “ kicking” underlies the charge of assault with a “ dangerous weapon,” the shoe or boot, not the foot, is the object which is considered as the “weapon” subjecting the assailant to a charge of aggravated assault. See
Ransom
v.
State,
Second, the notion that parts of the body may be used as dangerous weapons has not been generally accepted elsewhere. The clear weight of authority is to the effect that bodily parts alone cannot constitute a dangerous weapon for the purpose of an aggravated assault based on the alleged use of such a weapon. This is so, irrespective of the degree of harm inflicted. See
Ransom
v.
State,
State
v.
Calvin, supra,
the sole reported decision dealing with the question whether teeth may constitute a dangerous weapon, is particularly instructive. In that case there was evidence that the defendant had bitten the victim, and the trial judge had charged the jury that since “a person’s bare fist could be classed and used as a dangerous weapon, ... a
*195
person’s teeth could be classed as a dangerous weapon.”
“We know of no authority of law . . . which classes one’s bare hands or teeth as a dangerous weapon .... It is true that portions of the human anatomy may be dangerous and the bare hands of a merciless assailant may quite readily ‘produce death or great bodily harm,’ . . . but the fact remains that there must be proof of the use of some inanimate [1] instrumentality before a defendant can be held guilty of assault ‘with a dangerous weapon.’” Id. at 265-266.
The Commonwealth’s attempt to rationalize this array of precedent on the basis that each result depends on the peculiar nuances of the assault statutes in each State is not persuasive. Whatever the statutory oddities involved, the decisions all share common ground in their firm rejection on express or implied policy grounds of the idea that parts of the body may be “weapons.”
Third, in the absence of reconsideration by the Legislature of the term “dangerous weapon” or of the gist of the crime defined in § 15A, we see no compelling reason to stretch the term “weapon” to allow prosecution under § 15A of actions that are ordinarily prosecuted in other ways. Almost every attack which involves the use of a part of the body to inflict serious injury has been and remains punishable under one or the other of the felonious assault statutes apart from
*196
§ 15A. Thus, an attack such as an attempt to strangle falls under G. L. c. 265, § 15 (assault with intent to murder), or under § 29 of the same chapter (assault with intent to commit a felony, i.e., to kill). Attacks without weapons which result in injuries to particular parts of the body or which cause disabling or disfiguring injuries are prosecuted under the first portion of G. L. c. 265, § 14, as mayhem, or under § 15, as assault with intent to maim. If weapons, chemicals, or substances are used to maim or disfigure, the indictment is brought under the second portion of § 14 which “allows a conviction of mayhem for a more general range of injury.”
Commonwealth
v.
Hogan, 7
Mass. App. Ct. 236, 246 n.11,
S.C.,
Finally, we seek to avoid turbulence elsewhere in the statutory scheme. Assault crimes cover types of criminality ranging from simple assault and battery to a variety of aggravated assaults which are punishable as felonies. Commonly, the aggravating factor that runs the assault up to the more serious level is the specific intent to commit another felony (see, e.g., G. L. c. 265, § 24, assault with intent to rape), or the presence (apart from the use) of a weapon coupled with the specific intent to commit another crime (see, e.g., G. L. c. 265, § 18, assault “while armed” with in
*197
tent to rob or murder). In the case of an assault and battery by means of a dangerous weapon — a felony with a ten-year maximum — aggravation derives both from the use of an instrument capable of producing serious bodily harm
(Commonwealth
v.
Appleby,
We think, essentially for the reasons of public policy stated, that a broadening of the definition of a dangerous weapon in the context discussed should occur, if it occurs, through deliberative legislative action. 5
*199
3. The judgment on indictment no. 79-704 (mayhem) is affirmed. The judgment on indictment no. 79-705 is reversed, and so much of the verdict is set aside as found the defendant guilty of the use of a dangerous weapon. The case is remanded to the Superior Court for the defendant’s resentencing on indictment no. 79-705 as if for assault and battery. See
Commonwealth
v.
St. Pierre,
So ordered.
Notes
1 At this point we recognize that in Massachusetts an animate object such as an attack dog can be used as a “dangerous weapon.” Commonwealth v. Tarrant, supra.
We would not expect juries to return a great many guilty verdicts for armed robbery where the defendant bared his teeth at the victim.
It would be the rare case where a judge could determine as a matter of law that in the circumstances no dangerous weapon was used, whether the claimed assault or other crime was carried out by means of hands, feet, teeth or even long fingernails.
For example, a defendant might more easily plead to the lesser included offense of simple assault or battery, because of the prospect of not-so-certain acquittal as to the felony, particularly in cases like that of the barroom brawl where the victim is in fact injured.
In this regard, the Proposed Criminal Code of Massachusetts c. 265, §§ 6, 7, and 8 (Mass. Crim. Law Rev. Commn. 1972), divides assaults into three degrees denominated as Class B (first degree), C (second degree) and D (third degree) felonies. Each of these treats assaults which cause serious bodily injury separately from assaults which cause physical harm and involve the use of a dangerous weapon.
The Proposed Criminal Code c. 263, § 3(i), adopts the Model Penal Code definition of a dangerous weapon as follows: “any firearm or other *199 weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner in which it is used or is intended to be used is capable of producing death or serious bodily injury” (emphasis supplied). The reference to “animate” devices seems to be designed to cover the use of animals such as was the case in Commonwealth v. Tarrant, supra. If it were otherwise and part of the body were included therein, the distinc tions among the crimes in §§ 6, 7, and 8 would become meaningless.