## Facts

- Albert J. Henson was tried on complaints for (1) assault by means of a dangerous weapon (a revolver) against Theodore Finochio and (2) carrying a loaded revolver without a license.
- On December 24, 1968, off-duty Boston police officer Theodore Finochio was at a gas station, out of uniform, with his service revolver concealed under his coat.
- Henson entered with a female companion; after a verbal exchange, Henson pulled out a revolver, aimed it at Finochio’s stomach, and said, “Why should I?”
- Finochio raised his hands and testified he believed he was about to be killed.
- As Henson began to leave, Finochio drew his own revolver, pointed it at Henson, and identified himself as a police officer.
- From about five feet away, Henson turned and fired two shots at Finochio; a running exchange of gunfire followed outside until Henson was captured, subdued, and disarmed.
- Henson fired five or more shots; Finochio fired six shots, one of which struck Henson; Finochio was not hit.
- Henson’s revolver was loaded only with blank cartridges, a fact known only to Henson until after he was disarmed.

## Issues

1. Whether the evidence required a directed verdict on assault by means of a dangerous weapon where the revolver was loaded only with blanks and therefore allegedly lacked present ability to inflict harm.
2. Whether a revolver may qualify as a “dangerous weapon” for assault purposes based on its apparent capacity and the victim’s reasonable apprehension, despite the defendant’s private knowledge that it was loaded with blanks.

## Decision

- The Supreme Judicial Court of Massachusetts affirmed the assault-by-dangerous-weapon conviction.
- The court held the trial judge properly denied Henson’s motion for a directed verdict.
- The evidence permitted a finding that Henson committed an assault by means of a dangerous weapon because his conduct created a reasonable belief of imminent shooting with a real, loaded revolver.

## Legal Principles

- For assault, the Commonwealth may prove the victim’s reasonable apprehension of immediate bodily harm based on the defendant’s outward conduct and the apparent present ability to inflict harm.
- A revolver used by pointing and firing at a person may be treated as a “dangerous weapon” when it reasonably appears loaded and capable of causing serious injury, even if it is actually loaded only with blanks unknown to the victim and witnesses.
- On review of a denied directed-verdict motion, the evidence and reasonable inferences are taken in the Commonwealth’s favor; if a rational jury could find the elements beyond a reasonable doubt, the case is properly submitted to the jury.

## Conclusion

The court upheld the conviction because Henson intentionally pointed and fired what appeared to be a loaded revolver at close range, causing reasonable fear of immediate deadly harm, and the gun’s actual use of blanks—known only to Henson—did not negate assault by means of a dangerous weapon.


Commonwealth v. Henson, 357 Mass. 686, 259 N.E.2d 769 (1970)