STATE of Arizona, Appellee, v. Robert Allen GORDON, Appellant.
No. 4280-PR.
Supreme Court of Arizona, In Banc.
Sept. 18, 1978.
584 P.2d 1163
John M. Neis, Pima County Public Defender by Michael P. Roca, Asst. Public Defender, Tucson, for appellant.
GORDON, Justice:
A jury found appellant Robert Allen Gordon guilty of assault with a deadly weapon. He appealed his conviction alleging that the state failed to prove an essential element of the crime. The Court of Appeals affirmed the judgment but vacated the sentence which had been imposed under the enhanced punishment provision of
In the early morning hours of January 20, 1977, the victim was driving her Volkswagen homeward when she noticed the vehicle following her flashing its lights. Assuming the vehicle to be a police car, she stopped at the side of the road. Appellant then walked up to the driver‘s side of the vehicle, held a knife to the back of the driver‘s neck and ordered her to move over. Almost immediately, a passing police officer noticed the activity, including a shiny object in appellant‘s hand. The officer stopped, ordered appellant out of the Volkswagen, and arrested him.
Although
“A. An assault is an unlawful attempt, coupled with a present ability, to commit a physical injury on the person of another.
“B. A battery is a wilful and unlawful use of force or violence upon the person of another.”
Appellant contends that the evidence was insufficient to establish that he attempted to injure the victim. The Court of Appeals did not deal squarely with the issue of whether our statute requires an actual attempt to harm the victim. State v. Gordon, 120 Ariz. 182, 584 P.2d 1173 (App. 1978). Instead, it utilized a common law definition of assault citing State v. Parker, 116 Ariz. 3, 567 P.2d 319 (1977).
Since our assault and battery statute was adopted from California,1 we are aided in this case by California‘s interpretation of the statute, as well as our previous case law. In State v. Andrews, 106 Ariz. 372, 476 P.2d 673 (1970), this Court recognized that “[t]he essential element [of assault with a deadly weapon] is an unlawful attempt coupled with present ability to commit violent injury upon another with a deadly weapon.” Id. at 377, 476 P.2d at 678. Andrews has not been overruled nor has the attempt element been eliminated from
The language of our assault statute was modified in 1969 from “an unlawful attempt * * * to commit a violent injury on the person of another” to read “an unlawful attempt * * * to commit a physical injury on the person of another.” 1969 Ariz.Sess.Laws, ch. 133. (Emphasis added.) The term “physical injury” in the statute
“is not synonymous with ‘bodily harm’ but includes any wrongful act committed by means of physical force against the person of another. The term ‘physical injury’ as used here is synonymous with ‘physical force’ and in relation to assaults the two terms are used interchangeably.” State v. Dillon, 26 Ariz.App. 220, 222, 547 P.2d 491, 493 (1976); See also People v. Bradbury, 151 Cal. 675, 91 P. 497 (1907).
A battery, on the other hand, is “a wilful and unlawful use of force or violence upon the person of another.”
If read out of context, one sentence in State v. Gary, supra, could be construed to be in conflict with the foregoing discussion.4 In Gary we began our analysis by noting that “[t]he pointing of a [loaded] gun in a threatening manner may constitute an ‘assault’ under Arizona Law.” Id. 112 Ariz. at 471, 543 P.2d at 783 (cite omitted). Because a loaded gun is a deadly weapon, it is not necessary to prove actual intent to injure the victim. State v. Seebold, 111 Ariz. 423, 531 P.2d 1130 (1975); United States v. Harvey, 428 F.2d 782 (9th Cir. 1970). In Seebold, we quoted the Harvey court with approval:
“In cases involving traditional deadly weapons, such as the rifle in this case, the Arizona courts have not explicitly required an actual intent to harm. * * * We believe the Arizona courts would agree that this statute [
A.R.S. § 13-249 ] does not demand a stringent concept of intent when obviously deadly weapons are involved.” United States v. Harvey, 428 F.2d at 783-4.
By reading State v. Gary, supra, in the context of Harvey, which we relied on in Gary, together with the facts in Gary, it becomes clear that we meant that a stringent concept of both intent and attempt is not required when deadly weapons are involved. For example, it is not necessary to pull the trigger of a loaded gun before the crime of assault with a deadly weapon is complete. See People v. Thompson, 93 Cal.App.2d 780, 209 P.2d 819 (1949).
The reason for the relaxed attempt requirement was explained in the early California case of People v. McMakin, 8 Cal. 547 (1857):
“[It is] not essential to constitute an assault that there should be a direct attempt at violence. * * *
“Where a party puts in a condition which must be at once performed, and which condition he has no right to impose, and his intent is immediately to enforce performance by violence, and he places himself in a position to do so, and proceeds as far as it is then necessary for him to go in order to carry out his intention, then it is as much an assault as if he had actually struck, or shot, at the other party, and missed him. It would, indeed, be a great defect in the law, if individuals could be held guiltless under such circumstances.” Id. at 548-549 (emphasis added). People v. Thompson, supra.
In other words, regardless of the type of deadly weapon, when a person holds a deadly weapon in a position so that it could immediately be used to physically injury another, he need go no further toward the completion of a battery in order to satisfy the “attempt” element inhering in
Although we are affirming appellant‘s conviction, the sentence is vacated because it is in excess of the punishment prescribed by
“By adding the words ‘or deadly weapon’ after ‘armed with a gun’ in subsection B, we believe the rule of ‘ejusdem generis’ has application here. [citations omitted.] The words ‘ejusdem generis’ literally translated means [sic] of the same kind, class or nature. Such rules apply only to persons or things of the same nature, kind or class as preceding specific enumerations. [citations omitted.] In applying these principles in construing
A.R.S. § 13-249, subsec. B , as amended, we are of the opinion that the legislature intended that one armed with a deadly weapon of the type like a gun (ones that are inherently dangerous), is subject to increased punishment.” Id. at 42-43, 504 P.2d at 943-944. (Emphasis added.)
An inherently dangerous weapon, for which subsection B prescribes enhanced punishment, is “any instrument which, when used in [the] ordinary manner contemplated by its design and construction, will, or is likely to, cause death or great bodily harm.” State v. Luckey, 322 N.E.2d 354, 358 (Ohio App.1974). In addition to guns, weapons such as bayonets,5 blackjacks,6 and switchblades7 have been found inherently dangerous. Other objects which are not inherently dangerous weapons may be utilized in such a manner so as to have the capability of inflicting serious bodily harm. If this occurs, these objects then become deadly weapons for purposes of subsection A. Common examples of such objects considered deadly weapons by other courts are a shoe,8 a telephone,9 and a champagne bottle.10
The weapon utilized in the assault by appellant was a popular pocket knife which appears to be a “Buck knife.” Normally, a common pocket knife is not considered inherently dangerous. People v. Kersey, 154 Cal.App.2d 364, 316 P.2d 52 (1957); French v. State, 73 Okl.Cr. 141, 118 P.2d 664 (1941). However, depending on the size and design of the blade, we believe a jury could find a pocket knife inherently dangerous. Thus, in the majority of cases involving this type of knife, it remains a jury question as to whether the pocket knife in an assault falls within the provisions of
In the case sub judice, the court instructed the jury:
“A deadly weapon is any object, instrument or weapon which, used in the manner in which it appears to have been used, is capable of producing and is likely to produce, death or great bodily injury.”
This instruction only defines the type of deadly weapon in
In its opinion, State v. Gordon, 120 Ariz.App. 182, 584 P.2d 1173 (1978), the Court of Appeals expressed its disagreement with and declined to follow State v. Kidd, 116 Ariz. 479, 569 P.2d 1377 (App. 1977). We believe Kidd reached the correct result because it involved a gun which, as a matter of law, is inherently dangerous and is therefore governed only by
The opinion of the Court of Appeals is vacated. The judgment is affirmed. The sentence is vacated and the case remanded for resentencing pursuant to
HAYS and HOLOHAN, Justices, concurring:
We concur in the result.