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Similarly, when a dangerous weapon is not used in its intended manner, such as when a gun is “brandished but not fired, the jury must determine whether the defendant intended to use the weapon in a deadly manner. Accordingly, the attempt constituted the use of deadly force, which was unjustified in response to an unarmed attack.

As a threshold matter, we observe that “[w]hether force is deadly or nondeadly is determined by whether a dangerous weapon was free criminal defense used. Emphasizing the question of intent as one of fact, the defendant contends that he merely brandished the knife, and the question whether he intended to use it in a deadly manner should have been submitted to the jury.

The defendant was tried before a jury in the Boston Municipal Court, and was convicted on a charge of assault by means of a dangerous weapon, in violation of G. L. c. The defendant argues that the evidence in the present case raised a question of fact, to be resolved by the jury, whether the defendant’s use of the knife constituted the use of deadly or nondeadly force.

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Whether an instrument which is not dangerous per se, but which may be used in a dangerous manner, constitutes a dangerous weapon in the circumstances of a particular case is ordinarily a question of fact. COMMONWEALTH massachusetts criminal attorney v.

Scovacricchi’s uncontroverted testimony was that the defendant “tried to hit” Scovacricchi with a ten-inch long folding knife after opening it.

A self-defense instruction must be given when deadly force was used only if the evidence, viewed in the light most favorable to the defendant, permits at least a reasonable doubt that the defendant reasonably and actually believed that he was in ‘imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force. Though the testimony does not describe the precise nature of the defendant’s motion, the defendant’s attempt to hit Scovacricchi with the knife, had it been successful, would have caused serious injury.