State v. Gregory

Decision Date26 September 1972
Docket NumberNo. 2321,2321
Citation108 Ariz. 445,501 P.2d 387
PartiesThe STATE of Arizona, Appellee, v. Daniel Louis GREGORY, Appellant.
CourtArizona Supreme Court
Gary K. Nelson, Atty. Gen., by Mary Z. Chandler, Asst. Atty. Gen., Phoenix, for appellee

Ross P. Lee, Maricopa County Public Defender, by James H. Kemper, Deputy Public Defender, Phoenix, for appellant.

CAMERON, Vice Chief Justice.

This is an appeal from jury verdicts and judgments of guilt to the crimes of robbery, §§ 13--641 and 13--643 A.R.S., and assault with a deadly weapon, § 13--249 A.R.S., with concurrent sentences of not less than 10 nor more than 12 years as to each offense.

We are called upon to answer the following questions:

1. Was the evidence sufficient to sustain a conviction for assault with a deadly weapon where the testimony does not indicate that the gun was loaded?

2. Was it error for the trial court to deny the defendant's motion for a mistrial because of misconduct of the prosecuting attorney in oral argument to the jury?

3. Was the defendant subject to double punishment in violation of § 13--1641 A.R.S. when he was convicted of both assault with a deadly weapon and robbery?

The facts necessary for a determination of this matter on appeal are as follows. Defendant entered a Circle K convenience market in Phoenix, Arizona, at approximately 4:00 p.m. on 4 January 1970. The manager of the market, Mrs. Florence Robida, was in the store with her husband, Mr. Ramon Robida. The defendant held a gun on the husband and ordered Mrs. Robida to put the money from the cash drawer in a sack which she did. After obtaining the sack with the money, the defendant directed the husband to the check-out stand and made both Mr. and Mrs. Robida lie face down on the floor. The defendant then left.

At the trial before a jury, two thirteen year old patrons, as well as Mr. and Mrs. Robida, identified the defendant as the one who robbed the market.

The defense was alibi and as part of the alibi testimony, the defendant's attorney called the mother of the defendant who testified that the defendant was home for The jury did not accept the alibi defense and returned verdicts of guilty as to both charges.

dinner on the day in question and that she remembered it because it was the day her daughter became engaged. On cross-examination, she admitted that she had made a notation on the calendar and this was admitted into evidence. The defendant did not testify.

MUST THE GUN BE LOADED?

It is the contention of the defendant that before a gun may be a deadly weapon it must be loaded, and that a person may not be convicted of assault with a deadly weapon unless the State shows that the gun was loaded at the time.

This court held under the kidnapping statute wherein the statute reads, '* * * a crime as prescribed by the terms of subsections A and B, committed by a person armed with a gun or deadly weapon * * *' that:

'* * * Section D of § 13--491 does not provide that the kidnapping be by a person armed with a loaded gun. It merely requires that the act be committed 'by a person armed with a gun.' So the question of whether the gun was loaded is not involved in the instant case.' State v. Mitchell, 106 Ariz. 492, 497, 478 P.2d 517, 522 (1970).

The statutory definition of assault, however, requires 'present ability'. § 13--241, subsec. A, A.R.S. reads as follows:

'An assault is an unlawful attempt, coupled with a present ability, to commit a physical injury on the person of another.'

In the instant case the evidence indicates that the defendant ran out of the store with the gun. The gun was never found and the defendant was not arrested until some months after the robbery. At the trial the defendant did not take the stand on his own behalf and no testimony was introduced which would indicate the gun was not in fact loaded.

In Territory v. Gomez, 14 Ariz. 139, 125 P. 702, 42 L.R.A.,N.S., 975 (1912), the Arizona Supreme Court held the trial court erred in directing a verdict of acquittal because of the failure of the State to show that the gun used in an alleged assault with a deadly weapon was loaded. Justice Franklin stated:

"Although there is a division of views in the decided cases, we think that the better opinion is that, if a firearm is the alleged deadly weapon--a weapon the only ordinary use of which is by its being loaded--if it be pointed at the complainant in a threatening manner, if defendant makes threats to shoot, if the circumstances are such as would exist if one were using a loaded gun--in short, that if all the elements of the offense be made out, as required by the criminal laws and procedure, except the direct, we may say visual, proof that the weapon is loaded--under these circumstances, a direction to the jury to acquit is error, and the fact that the gun was unloaded (if such be the fact) is a matter of defense. Such view seems to be held by the weight of authority, and such is the only practical view in the enforcement of the statute in reference to assaults with deadly weapons of this character'.' Territory v. Gomez, supra, 14 Ariz. at 142, 125 P. at 703.

And we later stated:

'* * * In disposing of assignment No. 5 relative to whether an unloaded pistol constitutes a deadly weapon in a charge of 'an assault with a deadly weapon' we will merely state that thus far this court has not overruled or modified the doctrine relating thereto as set forth in Territory v. Gomez, 14 Ariz. 139, 125 P. 702, 42 L.R.A.,N.S., 975, which is to the effect that under the circumstances of this case the burden is upon the defendant to prove that the gun was not loaded. * * *' State v. Aldrich, 75 Ariz. 53, 61, 251 P.2d 653, 658 (1952).

Where the victim is close enough that the pistol or gun may be used as a bludgeon it is immaterial whether the gun was loaded or not for the gun can be used as a dangerous weapon with 'present ability to commit a physical injury' without it being loaded. Where the victim is not that close, however, the law in Arizona remains unchanged. The defendant must affirmatively prove that the gun was not in fact loaded. Certainly the victim had every right to believe and to presume the gun was loaded and so does the State. We agree with the Texas court:

'When a pistol is used in an assault but not used or attempted to be used as a bludgeon, the presumption is that it was loaded, in the absence of proof to the contrary. Under these circumstances, it is a deadly weapon. (Citations omitted).' Ogren v. State, 447 S.W.2d 682, 683 (1969).

And:

'In the instant case defendant, according to the State's witnesses, placed a .38 caliber revolver against Smith's chest and threatened to kill him. The ordinary victim in such a predicament would instantly be placed in fear of bodily harm or death, and this reaction would be 'well founded' whether the gun was loaded or not. Thus, based upon all of the above, we hold that defendant's first contention lacks merit.' State v. Drayton, 114 N.J.Super. 490, 277 A.2d 398, 400 (1971). State v. McGhee, 184 Neb. 352, 167 N.W.2d 765 (1969). But see also United States v. Davis, 429 F.2d 552 (8th Cir. 1970) and Annotation, 79 A.L.R.2d 1412.

We therefore hold that under the circumstances in this case, there being a presumption...

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13 cases
  • State v. Mirault
    • United States
    • New Jersey Supreme Court
    • March 17, 1983
    ...for attempt to commit robbery for purposes of sentencing; consecutive sentence for assault vacated). But see State v. Gregory, 108 Ariz. 445, 501 P.2d 387, 391 (Ariz.Sup.Ct.1972) (convictions of assault with deadly weapon and robbery did not merge where defendant ordered victims to lie on f......
  • State v. Hall
    • United States
    • Arizona Court of Appeals
    • February 23, 1978
    ... ... Alexander, 108 Ariz. at 567, 503 P.2d at 788 ...         Appellant's reliance on State v. Lockner, 20 Ariz.App. 367, 513 P.2d 374 (1973), and State v. Gregory, 108 Ariz. 445, 501 P.2d 387 (1972), is misplaced as those decisions deal [120 Ariz. 480] ... with A.R.S. §§ 13-242 and 13-249 which have elements different than the one with which appellant was convicted ...         Appellant claims that the trial court committed reversible error in ... ...
  • State v. Money, 2268
    • United States
    • Arizona Supreme Court
    • October 5, 1973
    ...show that the gun was unloaded, and hence not deadly. We have followed that rule of law in several cases since Gomez, State v. Gregory, 108 Ariz. 445, 501 P.2d 387 (1972); State v. Aldrich, 75 Ariz. 53, 251 P.2d 653 (1952); Lee v. State, 27 Ariz. 52, 229 P. 939 (1924); Gonzalez v. State, 21......
  • State v. Lockner
    • United States
    • Arizona Court of Appeals
    • August 30, 1973
    ...of a robbery with the use of a gun, it is the burden of the defendant to prove that the gun was not loaded. See State v. Gregory, 108 Ariz. 445, 501 P.2d 387 (1972). We apply the same reasoning to this case. See also State v. Aldrich, 75 Ariz. 53, 251 P.2d 653 (1952). There was no evidence ......
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