OPINION
OLIVER, Judge.
Henry Sanders Campbell and James S. Crawley, the defendants below, indigent and represented by the Shelby County Public Defender upon appointment by the court, were convicted of armed robbery in the Criminal Court of Shelby County and were sentenced to imprisonment for 30 years in the State Penitentiary. They have duly perfected an appeal in the nature of a writ of error to this Court.
The only Assignments of Error here challenge the sufficiency of the evidence to warrant and sustain the verdicts of the jury. However, the defendants, who did not testify or introduce any evidence at the trial, have raised no question concerning the sufficiency of the evidence to establish that they entered a drive-in grocery store about midnight on February 12, 1968 and, by menacing and intimidating the manager and an employee and forcing them to lie on the floor by vile and scurrilous vituperation and by threatening repeatedly to shoot them with a German luger type pistol brandished by Campbell, robbed the cash register of approximately $180 and then fled.
Rather, the whole basis of the defendants’ challenge to the sufficiency of the evidence is that it demonstrates that the pistol used in the holdup was not loaded. They insist that an unloaded gun is not a “deadly weapon” within the intendment and purview of that term in TCA § 39-3901 and, they contend therefore, that a robbery accomplished by the use of an unloaded gun does not constitute the highly aggravated and serious crime of robbery [335]*335“by the use of a deadly weapon” proscribed by that statute.
While it may be argued that the evidence does not conclusively resolve the question whether the pistol used in this robbery was loaded, we think it is fair to say that it was not. During the holdup, Campbell continuously used his free hand to operate the mechanism of the automatic-type pistol by pulling the slide to the rear and then releasing it to move forward into firing position, all the while threatening to shoot the manager and store employee and being urged to do so by Crawley. The defendants contend that such operation of the mechanism of the pistol successively places cartridges in the chamber and ejects them, and that the fact that no cartridges were ejected during Campbell’s manipulation of the gun demonstrates that it was unloaded. We agree, as did the trial judge.
But we cannot subscribe to the defendants’ insistence and theory that they could not be and were not guilty of robbery “by the use of a deadly weapon” simply because they used an empty gun. In Turner v. State, 201 Tenn. 562, 300 S.W.2d 920, holding that an unloaded sawed-off shotgun is a “deadly weapon” within the meaning of the armed robbery provision of TCA § 39-3901, the Court rejected the defendant’s theory:
“The authorities generally hold that whether the weapon was incapable of being discharged was irrelevant, as it was in the case of Moore v. Commonwealth, 260 Ky. 437, 86 S.W.2d 145, 146. The annotation to 74 A.L.R. 1209, fully covers this subject. The annotation discloses that with the exception of Wisconsin every State, which has passed upon the question, has held that whether a deadly weapon is capable of being shot is immaterial where the prosecution is for robbery with a deadly or dangerous weapon.
“It was said in Moore v. Commonwealth, supra:
‘Under this statute, it is not necessary for the indictment to charge, or the commonwealth to prove, that the pistol was loaded and in every respect capable of being used as a firearm. To so hold would render the statute a nullity, for the very obvious reason that the victim, or intended victim, of a robbery has no opportunity to examine a firearm to ascertain whether or not it is loaded. A person assaulted with a pistol has the right to assume that it is loaded and capable of producing death, and will not be required to subject himself to the danger of first endeavoring to ascertain those facts before yielding to the demands of the robber.’
“We think the reasoning in the above quotation applies equally to an unloaded shotgun.
“In our very recent case of Cooper v. State, 201 Tenn. 149, 297 S.W.2d 75, 78, the instrument there used was a toy pistol, and the Court modified the thirty year term in the penitentiary fixed by the jury and set aside and the case was remanded for the fixing by the jury of some term of confinement in the penitentiary of not more than fifteen years, which is the punishment prescribed for robbery from the person. The Court in that case came to the conclusion that a toy pistol was not a deadly weapon as contemplated by our statute. A toy pistol is very much different from a sawed-off shotgun.
“In Cooper v. State, supra, it is said:
‘It is the conclusion of this Court that the use of a toy pistol in the accomplishment of a robbery does not come within Chapter 72 of the Public Acts of 1955 providing punishment by death or imprisonment for the term of years mentioned therein when the robbery “be accomplished by the use of a deadly weapon.”
[336]*336‘Reference has been made to the Wisconsin case of Luitze v. State, supra (204 Wis. 78, 234 N.W. 382, 74 A.L.R. 1202), wherein it was held that an unloaded, but real, pistol cannot be regarded as a dangerous weapon within the meaning of the armed robbery statute. In this connection, the Court thinks it proper to say that our holding in this toy pistol case is not to be construed as meaning that an unloaded, but actual, pistol does not fall within the 1955 robbery statute amendment. That question will be decided if, and when it should arise.’
“It is sufficient to say that in the case now being considered, we are of the opinion that the sawed-off shotgun is a deadly weapon within the meaning of the 1955 amendment, and this would be so even though the gun were unloaded.”
Thus, it is no longer open to question or debatable that under the law of this State the fact that the gun used was unloaded is no defense to a charge of robbery by the use of a deadly weapon. As the Supreme Court of Colorado said long ago in McNamara v. People, 24 Colo. 61, 48 P. 541, “the intimidation of a person may be just as effectually accomplished by an apparent, as well as an actual, ability to inflict the menaced injury.” In the case before us, the store manager testified that Campbell stuck the pistol right under his nose, that “as far as I was concerned it was a loaded pistol,” that Campbell’s “actions indicated to me that he really meant business,” and that “I thought I was dead to be honest with you the way he kept clicking the gun and with his partner reiterating to shoot us. I figured that was it, to be perfectly honest with you.”
In Burgin v. State, 217 Tenn. 682, 400 S.W.2d 539, Mr. Justice Creson wrote for the Court:
“ * * * This Court has heretofore recognized that the 1955 Amendment [to TCA § 39-3901] as to robbery accomplished by the use of a deadly weapon is highly penal and is subject to the rule of strict construction. Cooper v. State (1956), 201 Tenn.
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OPINION
OLIVER, Judge.
Henry Sanders Campbell and James S. Crawley, the defendants below, indigent and represented by the Shelby County Public Defender upon appointment by the court, were convicted of armed robbery in the Criminal Court of Shelby County and were sentenced to imprisonment for 30 years in the State Penitentiary. They have duly perfected an appeal in the nature of a writ of error to this Court.
The only Assignments of Error here challenge the sufficiency of the evidence to warrant and sustain the verdicts of the jury. However, the defendants, who did not testify or introduce any evidence at the trial, have raised no question concerning the sufficiency of the evidence to establish that they entered a drive-in grocery store about midnight on February 12, 1968 and, by menacing and intimidating the manager and an employee and forcing them to lie on the floor by vile and scurrilous vituperation and by threatening repeatedly to shoot them with a German luger type pistol brandished by Campbell, robbed the cash register of approximately $180 and then fled.
Rather, the whole basis of the defendants’ challenge to the sufficiency of the evidence is that it demonstrates that the pistol used in the holdup was not loaded. They insist that an unloaded gun is not a “deadly weapon” within the intendment and purview of that term in TCA § 39-3901 and, they contend therefore, that a robbery accomplished by the use of an unloaded gun does not constitute the highly aggravated and serious crime of robbery [335]*335“by the use of a deadly weapon” proscribed by that statute.
While it may be argued that the evidence does not conclusively resolve the question whether the pistol used in this robbery was loaded, we think it is fair to say that it was not. During the holdup, Campbell continuously used his free hand to operate the mechanism of the automatic-type pistol by pulling the slide to the rear and then releasing it to move forward into firing position, all the while threatening to shoot the manager and store employee and being urged to do so by Crawley. The defendants contend that such operation of the mechanism of the pistol successively places cartridges in the chamber and ejects them, and that the fact that no cartridges were ejected during Campbell’s manipulation of the gun demonstrates that it was unloaded. We agree, as did the trial judge.
But we cannot subscribe to the defendants’ insistence and theory that they could not be and were not guilty of robbery “by the use of a deadly weapon” simply because they used an empty gun. In Turner v. State, 201 Tenn. 562, 300 S.W.2d 920, holding that an unloaded sawed-off shotgun is a “deadly weapon” within the meaning of the armed robbery provision of TCA § 39-3901, the Court rejected the defendant’s theory:
“The authorities generally hold that whether the weapon was incapable of being discharged was irrelevant, as it was in the case of Moore v. Commonwealth, 260 Ky. 437, 86 S.W.2d 145, 146. The annotation to 74 A.L.R. 1209, fully covers this subject. The annotation discloses that with the exception of Wisconsin every State, which has passed upon the question, has held that whether a deadly weapon is capable of being shot is immaterial where the prosecution is for robbery with a deadly or dangerous weapon.
“It was said in Moore v. Commonwealth, supra:
‘Under this statute, it is not necessary for the indictment to charge, or the commonwealth to prove, that the pistol was loaded and in every respect capable of being used as a firearm. To so hold would render the statute a nullity, for the very obvious reason that the victim, or intended victim, of a robbery has no opportunity to examine a firearm to ascertain whether or not it is loaded. A person assaulted with a pistol has the right to assume that it is loaded and capable of producing death, and will not be required to subject himself to the danger of first endeavoring to ascertain those facts before yielding to the demands of the robber.’
“We think the reasoning in the above quotation applies equally to an unloaded shotgun.
“In our very recent case of Cooper v. State, 201 Tenn. 149, 297 S.W.2d 75, 78, the instrument there used was a toy pistol, and the Court modified the thirty year term in the penitentiary fixed by the jury and set aside and the case was remanded for the fixing by the jury of some term of confinement in the penitentiary of not more than fifteen years, which is the punishment prescribed for robbery from the person. The Court in that case came to the conclusion that a toy pistol was not a deadly weapon as contemplated by our statute. A toy pistol is very much different from a sawed-off shotgun.
“In Cooper v. State, supra, it is said:
‘It is the conclusion of this Court that the use of a toy pistol in the accomplishment of a robbery does not come within Chapter 72 of the Public Acts of 1955 providing punishment by death or imprisonment for the term of years mentioned therein when the robbery “be accomplished by the use of a deadly weapon.”
[336]*336‘Reference has been made to the Wisconsin case of Luitze v. State, supra (204 Wis. 78, 234 N.W. 382, 74 A.L.R. 1202), wherein it was held that an unloaded, but real, pistol cannot be regarded as a dangerous weapon within the meaning of the armed robbery statute. In this connection, the Court thinks it proper to say that our holding in this toy pistol case is not to be construed as meaning that an unloaded, but actual, pistol does not fall within the 1955 robbery statute amendment. That question will be decided if, and when it should arise.’
“It is sufficient to say that in the case now being considered, we are of the opinion that the sawed-off shotgun is a deadly weapon within the meaning of the 1955 amendment, and this would be so even though the gun were unloaded.”
Thus, it is no longer open to question or debatable that under the law of this State the fact that the gun used was unloaded is no defense to a charge of robbery by the use of a deadly weapon. As the Supreme Court of Colorado said long ago in McNamara v. People, 24 Colo. 61, 48 P. 541, “the intimidation of a person may be just as effectually accomplished by an apparent, as well as an actual, ability to inflict the menaced injury.” In the case before us, the store manager testified that Campbell stuck the pistol right under his nose, that “as far as I was concerned it was a loaded pistol,” that Campbell’s “actions indicated to me that he really meant business,” and that “I thought I was dead to be honest with you the way he kept clicking the gun and with his partner reiterating to shoot us. I figured that was it, to be perfectly honest with you.”
In Burgin v. State, 217 Tenn. 682, 400 S.W.2d 539, Mr. Justice Creson wrote for the Court:
“ * * * This Court has heretofore recognized that the 1955 Amendment [to TCA § 39-3901] as to robbery accomplished by the use of a deadly weapon is highly penal and is subject to the rule of strict construction. Cooper v. State (1956), 201 Tenn. 149, 297 S.W.2d 75, 61 A.L.R.2d 993. However, this Court is also cognizant of the intention of the Legislature in enacting the 1955 Amendment so as to provide for punishment by death, imprisonment for life, or for any period of time not less than ten (10) years, for robbery accomplished by the use of a deadly weapon. This purpose was to prevent the kind and character of violence which often attends the use of a deadly weapon in the perpetration of a robbery.”
For cases from other jurisdictions which have recognized that one can be convicted of robbery by means of a deadly weapon notwithstanding the fact that the gun used was unloaded, see 79 A.L.R.2d 1426.
Finally, it is argued here that articles of clothing and a German luger type .22 pistol were erroneously admitted in evidence because they were seized in an illegal search of the premises where Campbell was arrested, the contention being that the search was not incident to his arrest. This question was not raised in the motion for a new trial, nor is it presented here by any Assignment of Error. We must adhere to the settled law of this State that the appellate court can review only questions presented for determination in the lower court. Wilkerson v. State, 208 Tenn. 666, 348 S.W.2d 314; Kirby v. State, 214 Tenn. 296, 379 S.W.2d 780; Ezell v. State, 220 Tenn. 11, 413 S.W.2d 678; Lawler v. McCanless, 220 Tenn. 342, 417 S.W.2d 548. In Kirby, the Court said:
“Questions raised for the first time on appeal will not be considered, or stated in another way, the trial judge will not be put in error upon matters not brought to his attention for correction in the motion for a new trial. See Ex parte Calhoun, 187 Tenn. 372, 215 S.W.2d 789 (1948); Parker v. Reddick, 196 Tenn. 472, 268 S.W.2d 357, 45 A.L.R.2d 1086 [337]*337(1954), and Rule 14(5), Rules of this Court, which provides in part:
‘This is a court of appeals and errors, and its jurisdiction can only be exercised upon questions and issues tried and adjudged by inferior courts, the burden being upon the appellant, or plaintiff in error, to show the adjudication, and the error therein, of which he complains.’ ”
Let the judgment of the trial court be affirmed.
MITCHELL, J., concurs.