People v. Freeman

[375]

HOUSER, J.

Defendants pleaded guilty to a charge of robbery. On a hearing had for the purpose of fixing the degree of the crime, the evidence showed that in the commission of the offense one of the defendants used a large unloaded revolver, although no oral threats were made by either of the defendants, nor was any attempt made by either of them to shoot with such weapon or to strike the victim of the robbery with it. At the time the robbery occurred another of the defendants had a matchbox made of metal in the shape of a pistol, which he flourished about, and the third defendant had nothing whatsoever in his possession which represented a weapon of any sort. In such circumstances, and in accordance with the provisions of section 1192 of the Penal Code, the trial court determined that the degree of the crime committed by the defendants constituted robbery in the first degree. From the judgment of the court pronounced in pursuance of such determination the defendants appeal to this court.

Section 211a of the Penal Code provides that: “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.”

It is the contention of appellants that because the record herein fails to show that any attempt was made by the defendants, or by either of them, to use the unloaded pistol in the possession of one of them in an aggressive or offensive manner, thereby indicating an attempt to injure the victim of the robbery, it cannot be said that the unloaded pistol was either a dangerous or a deadly weapon, and, consequently, that the determination by the trial court to the effect that the defendants were guilty of robbery in the first degree was prejudicial to the substantial rights of the defendants—for which error a reversal of the judgment should result.

The question as to whether a given instrument is a dangerous or a deadly weapon depends for its solution primarily upon the attendant circumstances, as well as upon the use which has been made, or is proposed to be made, of the particular instrument. Notwithstanding the general prevailing opinion, at least among those unfamiliar with or un

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