
    Dale Edward JONES, Appellant, v. STATE of Florida, Appellee.
    Nos. 69-714, 69-715.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 1970.
    Jim D. Syprett of Crabtree, Butler, Brush, Syprett & Meshad, Sarasota, for appellant.
    Earl Faircloth, Atty. Gen., Tallahassee, and Michael N. Kavouklis, Asst. Atty. Gen., Lakeland, for appellee.
   PER CURIAM.

We have examined the record, the briefs and all other papers filed in this matter and no reversible error having been shown, the judgment appealed from is therefore affirmed.

LILES, Acting C. J., and PIERCE, J., concur.

McNULTY, J., dissents with opinion.

McNULTY, Judge

(dissenting).

The one meritorious point on appeal is whether an unloaded pistol, not used as a bludgeon, constitutes a “deadly weapon” so as to support a conviction of aggravated assault. Our sister court in the First District concluded in the affirmative, Bass v. State, (1970), 232 So.2d 25. I disagree. The element of placing the victim in fear of imminent peril is embodied in the assault itself; but it’s the control of a “deadly weapon” by the perpetrator which raises the assault to the higher degree of crime, the gravamen of which is the present ability to inflict death or great bodily harm. Solitro v. State (Fla.App.2d 1964), 165 So.2d 223. This is hardly possible with an unloaded gun not used as a bludgeon. See, 79 A.L.R.2d 1424.  