The opinion
Concurring and Dissenting.
Jackson, J.
I concur in the result of that portion of the majority opinion reversing the conviction of appellant on the charge of attempted escape.
I dissent to that portion of the opinion affirming the conviction on the charge of assault and battery. Without going into detail, it is sufficient, for the purpose of the dissenting opinion herein, to say that at all times with which we are here concerned appellant was in custody and under the complete control and domination of the police authorities. The threats by appellant and three other prisoners could have at the option of the police been rendered completely ineffective. I agree that appellant was guilty of assault and battery upon the officer. I do not concur in the conclusions of the majority opinion that the assault was with the intent to kill. This Court has here again erroneously extended the definition of a deadly weapon far beyond the legislative intent. Under the present thinking of the Court as delineated in some of its *513 recent decisions a cup of coffee might be determined to be a deadly weapon, as I assume, under certain circumstances it might be possible to drown a person therein; or by throwing a cup of coffee in a person’s face confuse or blind the person so he could fall off a lunch room stool and hit his head on a piece of furniture and thus allege he was the victim of an assault with a deadly weapon.
The conviction on the charge of assault and battery with intent to kill should be reversed and remanded with instructions to grant appellant’s motion for a new trial.
Note.—Reported in 250 N. E. 2d 739 .