(concurring in part, dissenting in part).
I cannot agree with the majority’s holding that the evidence was insufficient to sustain appellant Ransom’s conviction of the crime of assault with a dangerous weapon. I further disagree with the majority’s conclusion that the government’s proof resulted in a material variance between “boots,” as charged in the indictment, and *174its evidence that Ransom was wearing “footgear.”1
In my view our recent opinion in Berfield v. State2 is controlling. There this court said in part:
We agree with appellant that boots cannot be classified, as a matter of law, as dangerous weapons in themselves
Following this theme, Berfield further states that:
Almost any object, depending upon its use or attempted use, is capable of or is likely to produce bodily harm. The test * * * is whether the object was so used that serious bodily harm may have resulted. The object’s latent capability alone is not determinative. What is determinative is such capability coupled with the manner of its use.
In regard to Berfield’s use of boots, we said in Berfield v. State3 that:
Appellant used his boots to kick Baker about the face and head. The boots were dangerous because they were used as something to fight with — as instruments of offensive combat. They were dangerous in these circumstances because their use was accompanied by the exposure or liability to serious injury to Baker’s head and brain. The fact that such serious injury did not result is not controlling. It is enough that the manner that appellant used his boots to assault Baker was capable of producing serious injury.
I understand Berfield as focusing upon the manner in which an object is used. Berfield’s boots were not dangerous weapons because the witness Brown described them as “engineer boots * * * real heavy black boots with a strap across the instep.” His boots could be found to be dangerous weapons because they were used as “instruments of offensive combat” and because their use was “accompanied by the exposure or. liability to serious injury to Baker’s head and brain.”
Study of the record shows that appellant Ransom used the footgear he was wearing in a manner similar to Berfield’s use of his boots, i. e., as instruments of offensive combat, which use was capable of producing serious injury to Baker’s head and brain. I am therefore led to the view that there was sufficient evidence in this record for the jury to reach the conclusion that Ransom’s use of his footgear upon the person of Baker demonstrated that his footgear was used as a dangerous weapon under the circumstances.
On this record I am of the opinion that the jury had as much knowledge of the physical characteristics of Ransom’s foot-gear as they did of Berfield’s boots. Ber-field’s boots were never introduced into evidence. The witness Brown’s description is the sole evidence as to the physical characteristics of the boots with which Berfield assaulted Baker. By virtue of the testimony of the sole defense witness, Susan Bailey, the jury had a basis for determining with some specificity the type of footgear, and physical characteristics thereof, that Ransom was wearing when he assaulted Baker.
I am also of the view that there was no variance between the indictment’s allegations of “armed with a dangerous weapon, to-wit, their boots” and the state’s proof that Ransom was wearing “footgear.” Even assuming a variance, I do not view such variance as a material one in the context of this record. It is of significance that the issue of Ransom’s guilt was not submitted to the jury on the theory of ac-cessorial liability, but on the theory that he could be found guilty of an assault with a dangerous weapon even if he had been wearing only the shoes Susan Bailey claimed he was wearing at the time the events in ques*175tion occurred. In the course of his final argument, the prosecutor stated, in part, that it was the government’s contention that:
Under these circumstances whether it he an engineer’s boot or whether it he the kind of shoe that the defendant — each of them is wearing at this time; that that instrumentality under those circumstances is capable of inflicting extremely serious injury * * *.
* * * We contend that under these circumstances a pair of shoes, whether they he ordinary shoes or engineer’s hoots are an extremely dangerous instrumentality.
I have already indicated that I am of the opinion that no variance occurred and even if the proof resulted in a variance between “boots” and “footgear,” such variance was immaterial. The term “boot” has been defined as “a covering for the foot and leg that is usually made of leather or rubber and is of varying height between the ankle and hip” and as “a shoe reaching to the ankle.”4 Guided by common usage, I am not persuaded that “footgear” or footgear as clarified by Susan Bailey’s testimony, lies outside the definition of “boots.” 5 Additionally, the indictment was definite enough to apprise Ransom of the offense with which he was being charged, to enable him to prepare his defense, and to furnish the basis for a plea of former jeopardy.6
I would therefore affirm the judgment and commitment which was entered by the superior court.
.I am in agreement with this court’s holding that the trial court’s failure to instruct on the subject of accessorial liability negates the possibility of affirmance of the judgment and commitment upon this alternative theory of the prosecution.
. Berfield v. State, 458 P.2d 1008 at 1009 (Alaska, October 1, 1969) (footnotes omitted).
. Id. at 1009 (footnote omitted).
. AVebster’s Third New International Dictionary Unabridged 254 (1966).
. AS 01.10.040 provides in part:
Words and phrases shall be construed according to the .rules of grammar and according to their common and approved usage.
.Stewart v. State, 438 P.2d 387 (Alaska 1968) ; Price v. State, 437 P.2d 330 (Alaska 1968) ; Thomas v. State, 391 P. 2d 18 (Alaska 1964).