Bartle v. Sheriff

OPINION Per Curiam: Randall Scott Barde and Frederick James Nichols were charged with, and ordered to stand trial for, (1) robbery (NRS 200.380); and (2), using a deadly weapon in the commission of a crime (NRS 193.165). Thereafter, they filed a petition for habeas corpus contending the evidence adduced at the preliminary examination was insufficient to establish probable cause that a deadly weapon had been used to commit the crime. The district court denied habeas and the same contention has been brought forward by appeal. Appellants’ sole argument, which we reject, is that since the cabdriver did not testify he actually “saw” a gun, they cannot be charged with the “deadly weapon” count. The record establishes, inter alia, that appellants, passengers in a taxicab, “jabbed” an object into the back of the driver’s neck and demanded money. The driver testified he “would swear” the object was-a gun; and, that he believed appellants’ threats that they would shoot him if he did not comply with their demand. In our view, this testimony meets the probable cause test delineated in NRS 171.206. See State v. von Brincken, 86 Nev. 769, 476 P.2d 733 (1970). Affirmed.