“Carrying a deadly weapon” means being armed with a deadly weapon by having it on the person, or in close proximity thereto, so that the weapon is readily accessible for use.
HISTORY:
1953 40A-7-1, enacted by Laws 1963, ch. 303, § 7-1.
Notes to Decisions
Accessibility for use.
Whether a weapon was readily accessible for use is a question for the fact finder to determine based on the evidence presented. State v. Salazar, 1997-NMCA-043, 123 N.M. 347, 940 P.2d 195, 1997 N.M. App. LEXIS 29 (N.M. Ct. App. 1997).
Applicability.
Legislature intended that its definition of “carrying a deadly weapon” would apply to all statutes making it a crime to carry a deadly weapon, whether concealed or on school grounds. State v. Salazar, 1997-NMCA-043, 123 N.M. 347, 940 P.2d 195, 1997 N.M. App. LEXIS 29 (N.M. Ct. App. 1997).
Carrying a weapon.
Where defendant was convicted of murder in the second degree, the trial court properly refused to give an instruction pursuant to former 1915 Code, § 1708, which provides that a traveler has a right to carry arms for protection while on a journey. Defendant was not a traveler when journeying from his home to his ranch. State v. Sedillo, 1918-NMSC-105, 24 N.M. 549, 174 P. 985, 1918 N.M. LEXIS 77 (N.M. 1918).
Construction.
Even though defendant claimed that 30-7-4 NMSA 1978, when read with 30-7-1 NMSA 1978, did not give fair notice of what conduct was prohibited, the court found that 30-7-4A(2) NMSA 1978 gave fair warning that a person could not have a deadly weapon “readily accessible for use” while under the influence of intoxicants or narcotics; in giving the words “accessible” and “use” their ordinary meanings, the statute plainly prohibited a person from having a firearm nearby, readily capable of being put into action or service, while under the influence of alcohol. State v. Rivera, 1993-NMCA-011, 115 N.M. 424, 853 P.2d 126, 1993 N.M. App. LEXIS 9 (N.M. Ct. App.), cert. denied, 115 N.M. 228, 849 P.2d 371, 1993 N.M. LEXIS 56 (N.M. 1993).
Information charging defendants with robbery while armed with a “deadly weapon” instead of with a “dangerous weapon” under C.S. 1929, 35-701 was not fatally flawed because the terms “deadly weapon” and “dangerous weapon” were interchangeable. State v. Walden, 1937-NMSC-037, 41 N.M. 418, 70 P.2d 149, 1937 N.M. LEXIS 38 (N.M. 1937).
Deadly weapon.
Children’s court erred in determining that a high school student was not entitled to have a jury decide whether he intended to carry a pocketknife on school premises as a deadly weapon, as an ordinary pocketknife was not a per se deadly weapon, and its actual or intended use had to be considered. State v. Nick R., 2009-NMSC-050, 147 N.M. 182, 218 P.3d 868, 2009 N.M. LEXIS 555 (N.M. 2009).
Evidence.
—Admissible.
Defendant was properly convicted of carrying a deadly weapon on school grounds under 30-7-2.1B(1) and 30-7-1 NMSA 1978 as well as negligent use of a firearm; although a gun found in his car was unrelated to the shooting that precipitated the charges against him, evidence of the gun was properly admitted into evidence as relevant to the charge of carrying a deadly weapon on school grounds. State v. Salazar, 1997-NMCA-043, 123 N.M. 347, 940 P.2d 195, 1997 N.M. App. LEXIS 29 (N.M. Ct. App. 1997).
Proximity to weapon.
Under 30-7-1 NMSA 1978, the offense of carrying a deadly weapon includes having a deadly weapon on defendant’s person, or in close proximity thereto, so that the weapon is readily accessible for use. A knife and a gun found in a vehicle parked in a school parking lot, which had been driven to school by defendant, a student, constituted carrying a concealed weapon because the weapons were in close proximity to the driver’s seat and defendant had ready access to the car during the day. Butler v. Rio Rancho Pub. Sch. Bd. of Educ., 245 F. Supp. 2d 1203, 2002 U.S. Dist. LEXIS 26236 (D.N.M. 2002).