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F 5.01a
Excusable Homicide: Definition Of Deadly Weapon
*Add to CJ 5.01 when appropriate:
The instrumentality which the prosecution alleges to have been a deadly weapon, namely __________, may not be found to be a deadly weapon for purposes of these instructions unless you find beyond a reasonable doubt that:
I. The instrument could be used as a deadly weapon, and
II. The defendant intended to use it as a deadly weapon.
Points and Authorities
The Supreme Court has divided dangerous and deadly weapons into two classes. The first class includes instrumentalities such as guns, dirks and blackjacks, which are weapons in the strict sense of the word as they are dangerous or deadly to others in their ordinary use so that, as a matter of law, they may be said to be dangerous and deadly weapons. (People v. Graham (69) 71 C2d 303, 327 [78 CR 217].)
Instrumentalities falling into the second class, such as ordinary razors, pocket-knives, canes, hammers, hatchets and other sharp or heavy objects, which are not weapons in the strict sense of the word and are not dangerous or deadly to others in the ordinary use for which they are designed, may not be said to be dangerous or deadly as a matter of law. (Graham, 71 C2d at 327-28.) For this class of instrumentalities, which includes vehicles, the jury may not conclude that the instrumentality was a deadly or dangerous weapon unless it finds (1) that the instrument could be used as a dangerous or deadly weapon and (2) that the defendant intended so to use it. (Id. at 328.)
CJ 9.20 and CJ 5.01 fail to require the jury to make the two-pronged finding as a predicate to a determination that the instrumentality was a deadly weapon. Accordingly, when appropriate, the CALJIC instructions should be supplemented to include the required two-pronged finding.
Additionally, CJ 12.42, which discusses the circumstances for consideration in determining whether the intended use of the instrument as a weapon, should be given in such a case. Note, however, that CJ 12.42 should be modified to require that the intended use be for a “deadly” rather than “dangerous” purpose in cases involving a determination of whether the instrumentality was a deadly weapon.
NOTES
[See Brief Bank # B-641 for additional briefing and an unpublished opinion on this issue.]
F 5.01b
Modification When Crime Involves Fetal Victim
*Modify CJ 5.01 in paragraphs which include “human being(s)” as follows:
(See FORECITE 5.00b.)
