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    "judges": [
      "HERNANDEZ, J., concurs.",
      "SUTIN, J., dissents."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Pete GONZALES aka Pedro Gonzales, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge.\nDefendant 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 \u201cdeadly weapon\u201d is insufficient to sustain his conviction. We agree.\nThere is evidence that a \u201ctire tool\u201d 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 \u201c * * * weapon which is capable of producing death or great bodily harm * * * \u201d or a weapon \u201c * * * with which dangerous wounds can be inflicted;\u201d Section 40A-1-13, N.M.S.A.1953 (2d Repl.Vol. 6).\nThe 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).\nThe 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.\nIn 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 \u00a7 40A-1-14, N.M.S.A.1953 (2d Repl.Vol. 6)], \u201cgot a tire tool,\u201d raised it over the attendant\u2019s head \u201c[m]ore like a threat\u201d 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 \u201ccharacter of the instrument.\u201d See State v. Belfiglio, supra; Coleman v. State, 49 Tex.Cr.R. 82, 90 S.W. 499 (1905).\nRaising the undescribed tire tool over attendant\u2019s head \u201clike a threat\u201d 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.\nThe 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).\nIt is so ordered.\nHERNANDEZ, J., concurs.\nSUTIN, J., dissents.",
        "type": "majority",
        "author": "WOOD, Chief Judge."
      },
      {
        "text": "SUTIN, Judge\n(dissenting).\nI dissent.\nA \u201cdeadly weapon\u201d also includes by definition a \u201cbludgeon.\u201d Section 40A-1-13(B), N.M.S.A.1953 (2nd Repl.Vol. 6).\nIn Morgan v. State, 220 Tenn. 247, 415 S.W.2d 879 (1967), defendants were convicted of armed robbery. Defendants contended there was no use of a deadly weapon. One of the victims thought an object covered by a sock held by a defendant was a \u201ctire tool.\u201d There was no description of the object. The court said:\nIt is our opinion a car tool, knife or other hard object wrapped in a sock and used as a bludgeon or club to assault a person in' perpetration of a robbery and thereby endanger the person\u2019s life is a deadly weapon within the meaning of the statute.\nIn State v. Walden, 41 N.M. 418, 70 P.2d 149 (1937), the victim of a robbery testified that he was hit \u201cwith what looked like a gun, although it being night and the only light present being from car lights he could not be sure what it was they hit him with.\u201d A conviction for armed robbery with a dangerous weapon was upheld.\nWhere defendants were found guilty of armed robbery, a \u201ctire iron\u201d, without description, was sufficient to constitute a deadly weapon. People v. Fischer, 234 Cal.App.2d 189, 44 Cal.Rptr. 302 (1965).\nIt is a question of fact for a jury to determine whether \u201ca certain knife\u201d, if used in a fight, was a deadly weapon. State v. Mitchell, 43 N.M. 138, 87 P.2d 432 (1939).\nIn Allen v. United States, 157 U.S. 675, 679, 15 S.Ct. 720, 721, 39 L.Ed. 854 (1895), the court said:\nIn one sense it may be true that sticks or clubs are not deadly weapons. . . But when a fight is actually going on sticks and clubs may become weapons of a very deadly character. Life may be endangered or taken by blows from them as readily as by balls from a pistol.\nSee Case Note, 21 L.R.A.,N.S., 497 (1909); Annot., 30 A.L.R. 815 (1924).\nA tire tool is not a deadly weapon per se. It depends upon how it is used. If it is used in a threatening manner over the head of a victim, it becomes a question of fact for the jury to determine whether the tire tool was a deadly weapon. The jury found it was.\nIt is a matter of common knowledge that a \u201ctire iron\u201d or \u201ctire tool\u201d is an instrument of manual operation, that is, an instrument to be used and managed by the hands to be used by a filling station operator for defects or problems involving tires of automobiles. See, Rowland v. Reynolds Electrical Engineering Co., 55 N.M. 287, 232 P.2d 689 (1951); 86 C.J.S. Tool p. 915. It is not necessary to describe it to a jury. The public knows what it is and what it is used for in the trade.\nThis conviction should be affirmed.",
        "type": "dissent",
        "author": "SUTIN, Judge"
      }
    ],
    "attorneys": [
      "Dale B. Dilts, Albuquerque, for defendant-appellant.",
      "David L. Norvell, Atty. Gen., Jane E. Pendleton, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "517 P.2d 1306\nSTATE of New Mexico, Plaintiff-Appellee, v. Pete GONZALES aka Pedro Gonzales, Defendant-Appellant.\nNo. 1210.\nCourt of Appeals of New Mexico.\nDec. 19, 1973.\nDale B. Dilts, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Jane E. Pendleton, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
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