State v. Gonzales , 85 N.M. 780 ( 1973 )

OPINION

WOOD, Chief Judge.

Defendant appeals his conviction of robbery while armed with a deadly weapon. Section 40A-16-2, N.M.S.A.1953 (2d Repl. Vol. 6). He claims the evidence as to “deadly weapon” is insufficient to sustain his conviction. We agree.

There is evidence that a “tire tool” was used in the robbery. Our statute does not specifically define a tire tool as a deadly weapon. The question then is whether it is a “ * * * weapon which is capable of producing death or great bodily harm * * * ” or a weapon “ * * * with which dangerous wounds can be inflicted;” Section 40A-1-13, N.M.S.A.1953 (2d Repl.Vol. 6).

The question of whether a weapon comes within the above quoted statutory phrases is ordinarily for the jury; the jury is to determine the question by considering the character of the instrument and the manner of its use. State v. Mitchell, 43 N.M. 138, 87 P.2d 432 (1939). This rule applies to a tire tool. The character of the tire tool and its use, as a deadly weapon, is a question of fact. People v. Fisher, 44 Cal.Rptr. 302, 234 Cal.App.2d 189 (1965).

The jury can resolve the factual question: (1) either by a description of the weapon and its use, even though the weapon is not in evidence, People v. Carr, 131 Cal.App. 644, 21 P.2d 967 (1933); compare State v. Vargas, 42 N.M. 1, 74 P.2d 62 (1937) ; (2) or by viewing the weapon admitted into evidence even though it is not described, State v. Belfiglio, 232 Mo. 235, 134 S.W. 508 (1911). Compare State v. Conwell, 36 N.M. 253, 13 P.2d 554 (1932) where the weapon and its use was described and the weapon was also introduced as evidence.

In this case the tire tool was not offered as evidence. According to the service station attendant who was robbed, the other man [defendant was convicted as an accessory, see § 40A-1-14, N.M.S.A.1953 (2d Repl.Vol. 6)], “got a tire tool,” raised it over the attendant’s head “[m]ore like a threat” and told the attendant to open the cash box. The tire tool was not described; we know nothing as to its size, length or weight. Specifically, there was no evidence before the jury as to the “character of the instrument.” See State v. Belfiglio, supra; Coleman v. State, 49 Tex.Cr.R. 82, 90 S.W. 499 (1905).

Raising the undescribed tire tool over attendant’s head “like a threat” was the only evidence on the question of whether the tire tool was a deadly weapon. This evidence, without more, was insufficient for a determination that the tire tool was capable of producing death or great bodily harm or a weapon with which dangerous wounds could be inflicted. Compare People v. Fisher, supra; People v. Carr, supra; State v. Belfiglio, supra.

The conviction is reversed. The reversal being for failure of proof, the cause is remanded with instructions to dismiss the charge of robbery while armed with a deadly weapon. State v. Losolla, 84 N.M. 151, 500 P.2d 436 (Ct.App.1972); State v. Malouff, 81 N.M. 619, 471 P.2d 189 (Ct.App.1970).

It is so ordered.

HERNANDEZ, J., concurs. SUTIN, J., dissents.