I concur. The serious question in the case is whether either of the robbers was armed, at the time of the robbery, with a dangerous or deadly weapon. There is no direct evidence that either of the pistols which the robbers pointed at the complaining witness and his companion was loaded, i.e., no one testified that he saw some person load either weapon or that he saw cartridges in either pistol. Wherefore appellants earnestly insist that there is no evidence to support a verdict of robbery in the first degree, as defined in section 211a of the Penal Code.
An empty revolver merely pointed at a person, and not used to strike him with, is neither a dangerous nor a deadly weapon, however much the person at whom it is pointed may be put in fear. A loaded revolver pointed at a person within shooting distance is a dangerous weapon as a matter of law. Though there is some conflict in the cases, the rule which in my opinion is supported by reason and by the weight of authority is this: The prosecution makes out a prima facie case from which the jury may infer that the gun or pistol was loaded, and that consequently it was a dangerous or deadly weapon, when it is proved that the weapon was pointed at the person assailed, within shooting distance, and that the act was accompanied with a threat, evidenced by words or conduct, indicating an intention to fire, the person at whom the weapon was pointed not knowing but that it is loaded. (Note toTerritory of Arizona v. Gomez, 14 Ariz. 139 [42 L.R.A. (N.S.) 975, 125 P. 702].) In Lipscomb v. State, 130 Wis. 238 [109 N.W. 986], a robbery case, the court says: "A loaded revolver pointed at a person within shooting distance is a dangerous weapon as mattter of law. This does not mean that it was necessary in the present case for the state to introduce proof that some person loaded the revolver or saw the cartridges in it. Under the weight of authority, when the state proves that a gun or revolver was pointed at a person within shooting distance with a threat or other words indicating intention to *Page 421 fire, the person assailed not knowing but what it is loaded, the state has made prima facie proof that the gun or revolver is loaded and consequently a dangerous weapon. . . . The case ofNevada v. Napper, 6 Nev. 113, holding to the contrary seems to stand practically alone, and is disapproved." In my opinion this rule states the only practical view to be taken in the enforcement of statutes dealing with assaults or robberies, where the weapon used to intimidate the victim is a gun or a pistol.
The evidence in this case, when considered in the light of the above-mentioned rule, is amply sufficient to warrant the inference that the pistols were loaded, and that, therefore, the robbery was committed with dangerous and deadly weapons.
A petition for a rehearing of this cause was denied by the district court of appeal on May 23, 1925, and a petition by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 25, 1925.
All the Justices concurred.