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State v. Cushman

    Citation. 133 Vt. 121,329 A.2d 648, 1974 Vt.

    Brief Fact Summary. Appellant pointed a gun at an officer during an altercation and was charged with recklessly endangering another of death or seriously bodily injury. Appellant argues he lacks the requisite mental state for the crime.

    Synopsis of Rule of Law. The danger of death or bodily injury is equally acute, no matter what the actor knows regarding whether the gun is loaded or unloaded.


    Facts. The police were called to the house of the Appellant on the evening in question. The visit was in response to a call made to the police by another that lived in the Appellant’s house. When the officer arrived, Appellant got into an argument with him and pulled a gun off the rack in the kitchen and pointed it as the officer. Appellant was charged with recklessly engaging in conduct that placed another person in danger of death or serious bodily harm. Appellant argues that the gun was an antique and unloaded.

    Issue. Whether Appellant possessed the requisite mental state for the crime he was charged with.

    Held. Affirmed.
    The correct jury question was whether or not Appellant did in fact point a gun at the Officer, the danger to the officer is presumed once the jury decides that Appellant pointed the firearm at him.

    The victim’s state of mind regarding knowledge of whether the gun was loaded or not is irrelevant. The danger of death or bodily injury is equally acute, no matter what the actor knows regarding whether the gun is loaded or unloaded.

    Dissent. The dissent disagreed with the majority on its decision that even if the defendant knows the gun is unloaded, he can still be found guilty of a crime. The dissent noted that the gun was actually unloaded. Although the officer may be in fear, he is not in danger.

    Discussion. The Court focused on the reading of the statute which made it a crime to point the gun at another, whether or not the person knew the gun was loaded or unloaded. It is irrelevant if the victim knows whether the gun is loaded or not. The only critical element to decide is whether Appellant pointed the gun at the officer, not whether he knew if the gun was loaded or not. The only mitigation Appellant would be allowed to offer would be that the gun actually a toy incapable under any condition of inflicting injury, which Appellant did not do in this case.


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