Homeless people -------> don’t brush teeth, which leads to -------> gum disease, a symptom of which is -------> bleeding
Because it is a common misconception that trained fighters are held to a higher standard by the law which is overwhelmingly not the case. Whether it’s people saying they have to register their hands, or what you said, it perpetuates this notion that is largely untrue.
I did not say ADW cannot involve fists. The qualifier was there because I meant it to be there. This is why reading comprehension is very important. I had the cites I linked to BEFORE I originally posted. I was aware of a few abnormal cases but, for the vast majority of cases, ADW charges are not brought against people using their hands, nor is the person’s training generally used against them in that manner. Even your cite doesn’t say he was charged with ADW because he was a trained fighter. I don’t even know, based on reading your site, if he was a trained fighter. If you simply wish to contend that such a charge has been successfully brought against a person, fine. But, don’t twist what I said to make it seem like I said it never happens. The point is that it is a poor analogy in part because of the rarity of such a charge being brought and being successfully pursued.
Hey – no personal insults outside the pit!
(And besides, on a message board so devoted to clarity/accuracy/nuance as this one, using that as a pejorative is a little odd.)
You know how many times the “do boxers/karatemen have to register their hands as deadly weapons” tends to pop up in GQ with some frequency? The typical/general answer is no, don’t be silly. I think that general sentiment is where the schism came from—that in general a boxer’s fists are not considered deadly weapons. A case that appears to run contrary to that is much more of the exception.
I may be wrong, but I don’t think you were trying to say that any boxer who pummels someone should be charged with ADW (and hence a sidetrack suggesting you were would seem vexing). Rather, by my reading you seemed to be addressing the intent question—that whether or not an item (in this case, spit/hands) should be considered a deadly weapon based on the intent of the attacker.
While jurisdictions differ, I think I disagree with the general analysis. First, I believe there is a strong distinction between ADW and attempted murder. If Mr. Tyson socked me in the eye, but that was it, he could certainly be charged with assault. But that it was just an eye-sock, I don’t think he could be prosecuted with ADW. If he stabbed me in the eye with a knife (or pencil, perhaps), but did not intend to kill, then ADW would come into play. If his beat-down was severe enough, though, instead of raising it to ADW, it could give rise to attempted murder. At that point, the status of his hands/training and my relative sissyness may come into play to determine the degree of attempted murder (if there are degrees). (I’m not familiar enough with the nuances of lesser included crimes to know if a prosecutor could ask the jury to return ADW, which is an interesting question.)
Second, I think the basis (again, speaking in broad terms and of general jurisdiction) for the determination by the fact finder is the reasonable person standard. Not whether the assailant thought it was a deadly weapon, but whether or not a reasonable person would think so. Suppose I come at you with a wet noodle, and I know it’s just a wet noodle, and I believe it could cause grievous harm. However, a reasonable person (as constructed in the minds of the fact finder) is not likely to agree.
I think the rational for placing the consideration in terms of the reasonable person standard is to avoid AWD charges for wet noodle attackers. Furthermore, it prevents “it was only a .22, and besides, I only meant to shoot out his kneecaps” type defenses.
Of course, I am speaking in generalities, and Texas, Florida, New Hampshire, and elsewhere may have construed things differently (and I may be hopelessly wrong!). But I think that the status of the weapon (for the purposes of ADW) is not typically tied to the intent of the assailant, but is based on a view of the entirety of the circumstances surrounding the weapon and its use save the assailant’s intent. This doesn’t preclude upping the ante to attempted murder, for which I believe intent plays a substantial role.
Now, watch the insults 'cause I got a box of fusilli and I’m not afraid to use it!
Where were you yesterday? That is pretty much spot on. And pardon the lawyer crack, I’m just tired of dealing with sophistry. Hands and/or spit can be, and have been, deemed deadly weapons. That was the point.
Under the “manner of use” portion of the deadly weapon statute, nearly anything can be a deadly weapon in Texas. Hands, feet, hatchets, a pencil, a bottle, a piece of glass, a vehicle, water, sewage, a BB gun, a pair of panties, etc. We had a sentencing in my courthouse yesterday where a hairdryer used to burn a mentally retarded woman was ruled a deadly weapon. This is still a pretty exceptional case; I don’t know if the deadly weapon finding ultimately would have held up in this guy’s case if he appealed on legal and factual sufficiency, but he waived his right to appeal.
Actually, your hypothetical is almost exactly the opposite of the OP’s case. The boxer has the ability to do lethal damage and so gets charged with ADW even if it wasn’t his intent to kill. The spitter, OTOH, may have intended to cause lethal damage, but had absolutely no ability to do so just by spitting.
35 years in prison will be an improvement in his housing and dining situation.
Except if it’s in self-defense. If the boxer is attacked, he has a right to defend himself. I would think the most he would be charged with is manslaughter.
True, but my point was that the intent/ability factor in the hypothetical is exactly opposite that of the actual incident.
I dunno - intent is rarely that much of a deal unless it’s differentiation from murder 1 to murder 2 or less; intent is important if it’s premeditated, less so if it’s not.
IANAL so maybe better for a real one to answer this question, though, as I really don’t know.
Anyone know the title of the O. Henry story with this theme?
If you read the link, we have a slightly different story. The appelant in that case was a hemopheliac with HIV, and a doctor opined that he would have had blood in his saliva making HIV transmission more likely…
The Cop and the Anthem.
Another two cents:While you’re tossing about the spit football and various appellate rulings, keep in mind that there are differences between findings of fact and findings of law.
A finding of law (in some instances) considers whether or not something can be presented to a jury (or judge in a bench trial) for a finding of fact. Appellate courts (generally) don’t rule on issues of fact. It can get a bit muddy, and sometimes a close reading of the opinion is required to figure out what the heck it is doing (not everyone has the lucidity of a Posner or Scalia).
If an appellate court overturns someone’s conviction because as a matter of law looks cannot kill, then someone who is later charged (in the same jurisdiction, etc.) with murder via looking, could raise that as a defense in, say, a motion to dismiss.
A finding of law doesn’t automatically mean a finding of fact follows in the next case. Say someone’s murder conviction is based on having been dressed to kill. They raise a similar issue as above in hopes of persuading the trial court (and later the appellate court) that as a matter of law, one’s attire cannot be considered a lethal weapon. If the appellate court upholds the conviction, they can do it by saying that as a matter of law, a look can be considered a lethal weapon. This means that in future cases, the prosecutor still must convince the finder of fact that a particular glance was in fact capable of lethality.
Lastly, an appellate court can make a stronger statement and say that as a matter of law, something fits under the statute. Following the above possibilities, if someone charged with lethal onion breath is charged with murder…trial trial trial appeal appeal appeal… the appellate court can rule that such fetidness is lethal. In a later case, a prosecutor doesn’t have to face the element of lethality of instrument, nor can the defense raise the issue as exculpatory: the finder of fact must accept the status of breath as a deadly weapon as true.
This is one of those things that makes pointing to appellate cases somewhat difficult in general conversation (or the highfalutin conversations of the Dope). Getting to what a court actually ruled on can be a tricky business. This is also one of the areas that gets under a lot of people’s skins—it runs very close to the cliché “legislating from the bench.” Some judges use the appellate opportunity to unnecessarily expand or contract a particular piece of legislation that goes far beyond what the legislatures had written. But, since they are setting precedent for lower courts, it is legally binding on them (and by extension, the rest of the community) just as if a legislature passed an amendment to the statute.
Please be aware: the above is a collection of generalities and inanities (and is probably wrong).
ETA:
Thanks!!!