¶1(dissenting).
¶2I dissent.
¶3A “deadly weapon” also includes by definition a “bludgeon.” Section 40A-1-13(B), N.M.S.A.1953 (2nd Repl.Vol. 6).
¶4In Morgan v. State, 220 Tenn. 247, 415 S.W.2d 879 (1967), defendants were convicted of armed robbery. Defendants contended there was no use of a deadly weapon. One of the victims thought an object covered by a sock held by a defendant was a “tire tool.” There was no description of the object. The court said:
It is our opinion a car tool, knife or other hard object wrapped in a sock and used as a bludgeon or club to assault a person in' perpetration of a robbery and thereby endanger the person’s life is a deadly weapon within the meaning of the statute.
¶5In State v. Walden, 41 N.M. 418, 70 P.2d 149 (1937), the victim of a robbery testified that he was hit “with what looked like a gun, although it being night and the only light present being from car lights he could not be sure what it was they hit him with.” A conviction for armed robbery with a dangerous weapon was upheld.
¶6Where defendants were found guilty of armed robbery, a “tire iron”, without description, was sufficient to constitute a deadly weapon. People v. Fischer, 234 Cal.App.2d 189, 44 Cal.Rptr. 302 (1965).
¶7It is a question of fact for a jury to determine whether “a certain knife”, if used in a fight, was a deadly weapon. State v. Mitchell, 43 N.M. 138, 87 P.2d 432 (1939).
¶8In Allen v. United States, 157 U.S. 675, 679, 15 S.Ct. 720, 721, 39 L.Ed. 854 (1895), the court said:
In one sense it may be true that sticks or clubs are not deadly weapons. . . But when a fight is actually going on sticks and clubs may become weapons of a very deadly character. Life may be endangered or taken by blows from them as readily as by balls from a pistol.
¶9See Case Note, 21 L.R.A.,N.S., 497 (1909); Annot., 30 A.L.R. 815 (1924).
¶10A tire tool is not a deadly weapon per se. It depends upon how it is used. If it is used in a threatening manner over the head of a victim, it becomes a question of fact for the jury to determine whether the tire tool was a deadly weapon. The jury found it was.
¶11It is a matter of common knowledge that a “tire iron” or “tire tool” is an instrument of manual operation, that is, an instrument to be used and managed by the hands to be used by a filling station operator for defects or problems involving tires of automobiles. See, Rowland v. Reynolds Electrical Engineering Co., 55 N.M. 287, 232 P.2d 689 (1951); 86 C.J.S. Tool p. 915. It is not necessary to describe it to a jury. The public knows what it is and what it is used for in the trade.
¶12This conviction should be affirmed.