State v. Thompson , 88 Wash. 2d 546 ( 1977 )

Dolliver, J.

(dissenting) — Unlike the majority, I find ambiguity in RCW 9.95.040, evinced not only by the differences of opinion between Divisions One and Two, but also by the disagreement between the majority and dissent here regarding its proper interpretation. Further, I believe the result reached by Division Two is correct.

With two exceptions, every item in the statutory catalog of deadly weapons is considered to be inherently dangerous if the defendant is armed with the weapon at the time of the commission of the crime. The statute does not instruct that consideration be given to the manner in which the weapon is used, the intent or ability of the user to inflict death or injury, or the part of the. body to which it is applied. The items listed are simply deemed to be "deadly weapons." Possession, not use, is controlling.

Different treatment is given to a "pipe or bar used or intended to be used as a club." (Italics mine.) The other items listed in the statute could conceivably have a use other than as a deadly weapon during the commission of a crime. A pipe or bar, however, has an obvious use other than as a deadly weapon, e.g., as a jimmy, or for breaking a window for entry. Thus, in the instance of a pipe or bar, possession alone is not sufficient; there is a question of fact as to whether the instrument was actually used as a deadly weapon or for some other purpose in the commission of the crime.

The purpose of the statute is not to delineate all of those items which can kill, but rather to define "deadly weapon." The importance of this term is that it limits the discretion of the Board of Prison Terms and Paroles in fixing the terms of confinement for persons convicted of a felony. If the legislature believes a knife with a blade of 3 inches or more is a deadly weapon, then the clear implication is that a knife with anything less than a 3-inch blade does not meet that definition of a deadly weapon. Similarly, if a metal pipe or bar used or intended to be used as a deadly weapon may be a deadly weapon, one used without that intent could not be so adjudged. The words "include, but are not limited to" should not be interpreted to include categories that were implicitly excluded by the legislature. This language refers to items which were neither specified nor implicitly excluded as deadly weapons.

I believe the correct analysis of the statute is well set forth by Division Two in State v. Williams, 3 Wn. App. 336, 340, 475 P.2d 131 (1970):

By a strained construction of the statute one could find that the words "include, but are not limited to" modify the phrase "any knife having a blade longer than three inches". Following this reasoning one could find that a knife with a blade longer than 3 inches was a deadly weapon as a matter of law, but a knife with a blade less than 3 inches could be found to be a deadly weapon if there was a reasonable basis for such a conclusion.

A more logical construction of the statute would apply the words "include, but not limited to" to the general category of weapons enumerated but would not exclude consideration of such weapons as ice picks, screwdrivers, axes and other potentially lethal weapons. By this rationale a knife with a blade less than "longer than three inches" could not be considered a deadly weapon.

Under the analysis of the majority, the words "having a blade longer than three inches" are simply read out of the statute. I do not believe this was the intention of the legislature. Had the legislature intended that any item be subject to a deadly weapon finding, there would have been no need to list the items named in the statute. The legislature merely could have required a factual finding to be made in each case.

I dissent.

Hicks, J., concurs with Dolliver, J.