Ex Parte Cobb

703 So. 2d 871, 1996 WL 434193
CourtSupreme Court of Alabama
DecidedOctober 25, 1996
Docket1941500
StatusPublished
Cited by26 cases

This text of 703 So. 2d 871 (Ex Parte Cobb) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex Parte Cobb, 703 So. 2d 871, 1996 WL 434193 (Ala. 1996).

Opinion

703 So.2d 871 (1996)

Ex parte Donald Lee COBB.
(Re Donald Lee Cobb
v.
State).

1941500.

Supreme Court of Alabama.

August 2, 1996.
Order Overruling Rehearing October 25, 1996.

*873 Brian Dowling, Dothan, for petitioner.

Jeff Sessions and Bill Pryor, attys. gen., and J. Thomas Leverette, asst. atty. gen., for respondent.

ALMON, Justice.

This Court issued the writ of certiorari to determine whether a person's fists can be "deadly weapons" or "dangerous instruments" under the definitions of these terms in § 13A-1-2(11) and (12), Ala.Code 1975. Donald Lee Cobb was convicted of assault with a dangerous instrument for hitting an adult female in the face with his fists. The Court of Criminal Appeals affirmed Cobb's conviction, by an unpublished memorandum. Cobb v. State, 678 So.2d 801 (Ala.Crim.App. 1995) (table).

Cobb was charged by separate indictments with assault in the first degree on Wanda Fassett and second-degree assault on her husband, David Fassett, based on Cobb's actions in a fight that occurred outside a Dothan nightclub. The indictments charged Cobb with using a deadly weapon or dangerous instrument, specifically his fists, to inflict injuries upon the victims. The circuit court instructed the jury to decide whether, under the circumstances, Cobb's fists were "highly capable of causing death or serious physical injury," and it instructed the jury that if they were, then they were dangerous instruments. The jury found Cobb guilty of assault in the first degree on Wanda Fassett and assault in the third degree on her husband. Cobb was sentenced to five years' imprisonment and was fined $250 on the first-degree conviction and was sentenced to one year and fined $250 on the third-degree conviction. Under the court's instructions, the jury could have returned these verdicts only by finding that Cobb's fists constituted dangerous instruments in regard to the assault on Wanda Fassett but not in regard to the assault on David Fassett.[1] Therefore, the issue presented in the petition pertains only to Cobb's conviction for assault with a dangerous instrument on Wanda Fassett. Cobb's attack on his conviction for third degree assault on David Fassett presents no merit, so the judgment of the Court of Criminal Appeals is affirmed insofar as it affirmed that conviction.

Under the Alabama Criminal Code, the use of a deadly weapon or a dangerous instrument elevates a simple assault, assault in the third degree, § 13A-6-22(a)(1), which is a misdemeanor, to an assault in the second degree, a class C felony, § 13A-6-21(a)(2). Also, the infliction of "serious physical injury" without the use of a deadly weapon or dangerous instrument is assault in the second degree, § 13A-6-21(a)(1), but the use of a deadly weapon or a dangerous instrument elevates the offense to assault in the first degree, a class B felony. A person commits an assault in the first degree when, "[w]ith the intent to cause serious physical injury to *874 another person, he causes serious physical injury to any person by means of a deadly weapon or dangerous instrument," § 13A-6-20(a)(1); Cobb was convicted under this provision.

In 1977 the legislature adopted the Alabama Criminal Code, which became effective in 1980. Ala.Code 1975, § 13A-1-1 et seq. For the first time, the legislature defined "deadly weapon" and "dangerous instrument." Section 13A-1-2(11) defines a "deadly weapon" as:

"A firearm or anything manifestly designed, made or adapted for the purposes of inflicting death or serious physical injury, and such term includes, but is not limited to, a pistol, rifle or shotgun; or a switch-blade knife, gravity knife, stiletto, sword or dagger; or any billy, black-jack, bludgeon or metal knuckles."

Section 13A-1-2(12) defines a "dangerous instrument" as:

"Any instrument, article or substance which, under the circumstances in which it is used, attempted to be used or threatened to be used, is highly capable of causing death or serious physical injury, and such term includes a `vehicle,' as that term is defined in subdivision (13) of this section."

This Court has never addressed the question whether a person's fist or hand fits the statutory definition of a deadly weapon or a dangerous instrument.[2] However, shortly after the adoption of the Criminal Code, the Court of Criminal Appeals held that, depending on the manner and circumstances of their use, a person's fists could be considered "deadly weapons" or "dangerous instruments" under the statutory definitions. Stewart v. State, 405 So.2d 402 (Ala.Crim. App.1981).

In Stewart v. State the court held that "the use of an adult man's fist to beat a [17-month-old] child allows those fists to be classified as a deadly weapon or a dangerous instrument." Stewart, 405 So.2d at 405. In reaching this conclusion, the court stated:

"Long before the adoption of the new criminal code on January 1, 1980, Alabama subscribed to the view that it was the use of the weapon or instrument, and not solely its nature, that determined whether or not it was esteemed deadly. Helton v. State, 372 So.2d 390 (Ala.Crim.App.1979), and cases cited therein. This emphasis on `use' under the circumstances [has] been codified in Section 13A-1-2(12). Moreover, there is no limitation expressed in § 13A-1-2(11) which would prevent human fists from being considered a `deadly weapon' under appropriate circumstances."

Id. (Emphasis omitted.)

The Stewart court based its holding on a misplaced analogy to the reasoning in Helton v. State, 372 So.2d 390 (Ala.Crim.App.1979), which was decided before the Code definition of "deadly weapon" or "dangerous instrument" became effective. In Helton the defendant was convicted of assault with intent to murder for repeatedly kicking the victim in the face with his boot-clad foot. Helton, 372 So.2d at 391. The central issue in Helton was whether the blows inflicted by Helton were sufficient to support an inference of malice, which was necessary for a conviction of assault with intent to murder. Thus, the court had to determine whether kicking the victim in the face with a boot constituted the use of a deadly weapon, or, in the alternative, exhibited such violence and brutality that an intent to murder could be inferred. Id., 372 So.2d at 393.

The Helton court relied on the theory that it is the use of the weapon and not solely its nature that determines if it is likely to cause death or injury. Id. To illustrate that fact, Judge Bowen, writing for the court, cited several cases in which an object that would not normally be considered a deadly weapon or dangerous instrument — for example, an *875 automobile crank, a large stone, a bottle, an aluminum chair, or a file — was used to inflict injury on another person. After citing those cases, the court concluded: "[T]hus we cannot state, as a matter of law, that kicking with a shoe-clad foot may not constitute assault with a deadly weapon." Id. (emphasis added).

In Helton, the court was focusing on the fact that the defendant kicked the defendant with his boot, and the boot, not the foot, was held to be a deadly weapon. This point is made clearer by the fact that the circuit court instructed the jurors that if they found that a boot or shoe was used in such a manner that it became a deadly weapon then they could infer an intent to take life. Id., 372 So.2d at 394-95 n. 1. The court did quote an A.L.R.

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Bluebook (online)
703 So. 2d 871, 1996 WL 434193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-cobb-ala-1996.