State v. Cushman – Case Brief
State v. Cushman, 133 Vt. 121, 329 A.2d 648 (Vt. 1974).
Facts: A woman called the police out of concern that Cushman’s (D) presence in the home placed her daughter at risk of harm. Cushman argued with the trooper who arrived on the scene and during the argument took a firearm from a rack in the kitchen and pointed it at the trooper. Cushman was charged with recklessly engaging in conduct that placed another in danger of death or serious bodily injury.
Cushman testified at trial that the weapon was of antique vintage and not loaded. The statute under which Cushman was convicted stated that recklessness was presumed for knowingly pointing a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded. Cushman was convicted and appealed.
Issue: Under a criminal statute that presumes danger from a firearm pointed at another, must there in fact be danger and must the firearm in fact be loaded?
Holding and Rule (Smith): No. Under a criminal statute that presumes danger from a firearm pointed at another, there need not in fact be danger and the firearm need not in fact be loaded.
The legislative intent is clear that even if the actor has actual knowledge or is presumed to have knowledge that the gun is unloaded, the recklessness of his conduct is presumed from the mere act of pointing a firearm at another. There is no doubt that the person being threatened has no way of knowing whether or not the weapon is loaded. The legislature has put all parties on notice that pointing guns at anyone, loaded or unloaded, is not the type of conduct that the state wants to promote.
Disposition: Affirmed.
Dissenting (Daley): While the actor’s knowledge as to whether the gun is loaded is irrelevant under this statute, the statute requires the placing of someone in danger and that cannot happen unless the gun was actually loaded. The trial court committed reversible error when it instructed the jury that it was of no importance that the firearm was unloaded.
See Godfrey v. Georgia for a criminal law case brief of a decision of the United States Supreme Court involving an assault with a firearm.