The Definition of Deadly Weapon Under the Colorado Criminal Code
| Publication year | 1986 |
| Pages | 1663 |
1986, September, Pg. 1663. The Definition of Deadly Weapon Under the Colorado Criminal Code
The use of a "deadly weapon" is an element of a number of crimes set forth in the Colorado Criminal Code, including menacing, aggravated robbery and various forms of assult.(fn1) In addition, the use, possession or threatened use of a deadly weapon during the commission of certain felonies may subject a defendant to a mandatory sentence for the commission of a violent crime.(fn2)
Until recently, the question of what constitutes a deadly weapon for purposes of the foregoing statutes seemed reasonably well-settled. However, some rather unusual legislative action, followed by uncertain judicial construction, has served to muddy the waters. This article discusses the legislative intent and judicial interpretation of the definition of "deadly weapon."
Common law in Colorado held that certain weapons were so lethal in nature that they constituted "deadly weapons" as a matter of law; other instruments, while not "deadly weapons" per se, could be construed as such depending upon their nature and the manner in which they were used during the commission of a crime.(fn3) Knives and guns, for example, were included in the former category.(fn4) The latter classification might include hands and fists or a simulated pistol.(fn5)
As part of its codification of the criminal laws in this state, in 1971 the legislature adopted the following definition of "deadly weapon," consistent with prior case law:
"Deadly weapon" means any firearm, knife, bludgeon, or other weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or intended to be used is capable of producing death or serious bodily injury.(fn6)
The issues which arose under this statute were similar to those which arose at common law. Generally, they focused on whether some instrument used in the commission of a crime fell into the per se category of deadly weapons (knife, firearm or bludgeon) or required evidence concerning the manner of use. If in the latter category, defendants had an opportunity to argue about the sufficiency of the evidence supporting the conclusion that the device was used or intended to be used in a manner capable of causing death or serious injury.
Thus, in People v. Bowers,(fn7) the defendant argued that a full bottle of whiskey was not a "bludgeon" within the meaning of the deadly weapon statute. The Colorado Court of Appeals, somewhat blurring the distinction between per se and non-per se categories, concluded that as used in the assault the bottle was a bludgeon and hence a "deadly weapon" as defined in the...
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