Instruction 7.700, Criminal Model Jury Instructions for Use in the District Court

CARRYING A DANGEROUS WEAPON WHEN ARRESTED

The defendant is charged with carrying a dangerous weapon (on his

[her] person) (under his [her] control in a vehicle) when he (she) was

arrested (on a warrant) (for a breach of the peace).

Section 10(b) of chapter 269 of our General Laws provides as follows:

“[W]hoever,

when arrested (upon a warrant for an alleged crime) (while

committing a breach or disturbance of the public peace)

(is armed with) (has on his person) (has on his person or under

his control in a vehicle)

a. . . dangerous weapon. . .

shall be punished. . . .”

To prove that the defendant is guilty of this offense, the

Commonwealth must prove four things beyond a reasonable doubt:

First: That the defendant was (arrested on a warrant) (arrested

without a warrant for committing a breach of the peace);

Second: That at the time of his (her) arrest the defendant (was armed

with [alleged weapon] ) (had [alleged weapon] on his [her] person) (had

[alleged weapon] under his [her] control in a vehicle);

Third: That the defendant knew that he (she) was carrying the

[alleged weapon] (on his [her] person) (under his [her] control in a vehicle);

and

Fourth: That the [alleged weapon] was a dangerous weapon.

A dangerous weapon is an item

A. If the alleged weapon is dangerous per se.

which, by its nature, is capable of causing serious injury or death. I

instruct you that, as a matter of law, a ___________ is a dangerous weapon.

An item is a dangerous weapon if

B. If the alleged weapon is not dangerous per se.

it is used in a way that it reasonably appears to be capable of causing

serious injury or death to another person. In deciding whether an item is a

dangerous weapon, you may consider the circumstances under which it

was possessed, the nature, size and shape of the item, and the manner in

which it was handled or controlled.

Commonwealth v. O'Connor, 7 Allen 583, 584 (1963) (statutory purpose is to ensure safety of

arresting officers); Commonwealth v. Blavackas, 11 Mass. App. Ct. 746, 752-753, 419 N.E.2d 856,

859-860 (1981) (complaint that does not charge first element charges no crime). For cases on what

constitutes a “dangerous weapon,” see the notes to Instruction 6.300 (Assault and Battery by Means

of a Dangerous Weapon).

This model instruction covers the offense set out in the second clause of G.L. c. 269, § 10(b). Note

that this offense is inapplicable to firearms, rifles and shotguns (which are covered by § 10[a]) and

to the per se dangerous weapons which are listed in the first clause of § 10(b). See Instruction 7.680

(Carrying Certain Dangerous Weapons) for the offense set out in the first clause of § 10(b). See the

notes to Instruction 6.300 (Assault and Battery by Means of a Dangerous Weapon) as to what

constitutes a dangerous weapon.

SUPPLEMENTAL INSTRUCTION

In this case you have heard testimony

Breach of the peace.

suggesting that the defendant was arrested without a warrant for

committing the offense of [alleged offense for which arrested] . If it is

proved to you beyond a reasonable doubt that the defendant

committed that offense, I instruct you that as a matter of law

such an offense constitutes a breach of the public peace.

Not every crime is a breach of the peace. An affray, assault, or disorderly conduct

is a typical breach of the peace. Commonwealth v. Gorman, 288 Mass. 294, 298-

299, 192 N.E. 618, 620 (1934) (OUI is a breach of the peace). See Commonwealth

v. Cavanaugh, 366 Mass. 277, 280-281, 317 N.E.2d 480, 482-483 (1974) (high

speed traffic chase is a breach of the peace); Commonwealth v. Wright, 158 Mass.

149, 158-159, 33 N.E. 82, 86 (1893) (possession of short lobsters is not a breach of

the peace); Lennon v. Richardson, 15 Gray 74, 77 (1860) (illegal sale of alcohol is

not a breach of the peace). See also Instruction 7.200 (Disturbing the Peace).