421 Mass. 610 | Mass. | 1996
A District Court jury convicted the defendant of assault by means of a dangerous weapon.
“The defendant testified that the gun in question was an inoperable pellet pistol that fell from his waistband down the inside of his pants when he jumped to avoid the approach of the officer’s cruiser. He testified that while watching the officer pat down the other man, he ‘saw the need to get rid of both the pistol and some marijuana he was carrying. After throwing the marijuana away, he turned his attention to the pistol and, without directly touching it, was in the process of pushing it downward inside his pants when he was set upon by the officer.” Commonwealth v. Musgrave, supra at 519-520.
A District Court jury convicted the defendant of assault by means of a dangerous weapon. See G. L. c. 265, § 15B (1994 ed.). The defendant appealed claiming that the judge erred by refusing to instruct the jury that the Commonwealth must establish as an element of the crime that the defendant intended to place the officer in fear. On this ground, the Appeals Court reversed and set aside the verdict. We agree with this holding. The rationale underlying our decision is set out in the Appeals Court’s opinion and need not be repeated here. Accordingly, we adopt the opinion of the Appeals Court and incorporate it as our own.
Judgment reversed.
Verdict set aside.
The Commonwealth filed a nolle prosequi as to the charges of malicious destruction of property and possession of a firearm without an identification card. The charge of illegal possession of a Class D substance was filed without a finding.