People v. Raleigh

SPENCE, J.

The defendant was duly convicted of the crime of the attempt to commit robbery of the first degree and from the final judgment of conviction and the order denying his motion for new trial, defendant has appealed.

The defendant entered a haberdashery, approached within one or two feet of the proprietor, pointed a gun at the proprietor, and said, “Stick them up.” The proprietor ran out of the door on to the street. The defendant followed and fled without accomplishing his purpose.

Calling our attention to the fact that there is no evidence in the record to show that the gun was loaded, appellant contends that the evidence was insufficient to sustain the verdict of attempt to commit robbery of the first degree. We find no merit in this contention.

Section 211a of the Penal Code defines first and second degree robbery as follows: “All robbery which is perpetrated by torture or by a person being

armed with a dangerous or deadly weapon

is robbery in the first degree. All other kinds of robbery are of the second degree.” (Italics ours.) It is therefore clear that all that is required to constitute robbery of the first degree is that the person perpetrating the robbery be “armed with a dangerous or deadly weapon”. The question of whether an unloaded gun constitutes a “dangerous or deadly weapon” within the meaning of the section has been frequently considered.

(People

v.

Hayes,

118 Cal. App. 341 [5 Pac. (2d) 439];

People

v.

Seaman,

101 Cal. App. 302 [281 Pac. 660];

People

v.

Hall,

87 Cal. App. 634 [262 Pac. 50];

People

v.

Freeman,

86 Cal. App. 374 [260 Pac. 826];

People