Seawright

Appellants and one Kent were charged with the crime of robbery, a felony. Three separate verdicts were returned by a jury, convicting each defendant of robbery in the first degree. Seawright and Eberle appeal from orders denying their motions for new trial, and from the judgments based upon said verdicts.

The three defendants were tried jointly, and each one testified upon the trial. A written confession of the defendant Kent was introduced in evidence, but the jury were instructed to regard it only as against him, and that nothing therein contained should be considered as evidence against these appellants. The latter appeal upon the ground of alleged insufficiency of evidence to sustain a conviction of robbery in the first degree, as defined by section 211a of the Penal Code. Bobbery, as denounced by the statute, is defined and classified as follows:

It is contended by appellants that the. evidence was not sufficient to warrant the jury in finding that they .committed the offense charged; that if committed by them they used the firearms which were introduced in evidence; or, that if appellants were believed by the jury to have committed the robbery with firearms, the guns were…

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…