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81 A.L.R.4th 745

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81 A.L.R.4th 745 (Originally published in 1990) American Law Reports ALR4th The ALR databases are made current by the weekly addition of relevant new cases. Fact that gun was broken, dismantled, or inoperable as affecting criminal responsibility under weapons statute

Jeffrey F. Ghent, J.D. TABLE OF CONTENTS Article Outline Index Table of Cases, Laws, and Rules Research References ARTICLE OUTLINE I Preliminary Matters § 1[a] Introduction—Scope § 1[b] Introduction—Related matters § 2[a] Summary and comment—Generally § 2[b] Summary and comment—Practice pointers II Pistol, Revolver, or Handgun § 3[a] Possession—generally or without license, permit, or registration—View that operability is required for violation—statute violated § 3[b] Possession—generally or without license, permit, or registration—Statute not violated § 3[c] Possession—generally or without license, permit, or registration—View that operability is not required for violation § 4 With altered serial number § 5 With intent to use unlawfully § 6 Of "dangerous" or "deadly" weapon § 7[a] By previously convicted person—View that operability is required for violation—statute violated

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§ 7[b] By previously convicted person—Statute not violated § 7[c] By previously convicted person—View that operability is not required for violation § 7[d] By previously convicted person—California cases § 7[e] By previously convicted person—Georgia cases § 8[a] During commission of crime—View that operability is required for violation § 8[b] During commission of crime—View that operability is not required for violation § 9[a] Carrying—generally or without license, permit, or registration—View that operability is required for violation—statute violated § 9[b] Carrying—generally or without license, permit, or registration—Statute not violated § 9[c] Carrying—generally or without license, permit, or registration—General view not at issue under statutory exception—statute violated § 9[d] Carrying—generally or without license, permit, or registration—Statute not violated § 9[e] Carrying—generally or without license, permit, or registration—View that operability is not required for violation § 10[a] Concealed—View that operability is required for violation—statute violated § 10[b] Concealed—Statute not violated § 10[c] Concealed—View that operability is not required for violation § 11[a] "Dangerous" or "deadly" weapon—View that operability is required for violation—statute violated § 11[b] "Dangerous" or "deadly" weapon—Statute not violated § 11[c] "Dangerous" or "deadly" weapon—View that operability is not required for violation § 12[a] By previously convicted person—View that operability is required for violation § 12[b] By previously convicted person—View that operability is not required for violation § 12[c] By previously convicted person—General view not at issue under statutory exception § 13 During commission of crime § 14 In automobile in which intoxicating liquor is being transported § 15 Into jail § 16 Use—generally § 17 Of "dangerous" or "deadly" weapon § 18[a] During commission of crime—View that operability is not required for violation § 18[b] During commission of crime—Maryland cases § 19 Exhibition § 20 Pointing—generally § 21 By previously convicted person § 22 Other or unspecified offense III Rifle § 23 Possession—of sawed–off or short–barreled rifle § 24 By previously convicted person § 25 Carrying § 26 Parading or threatening with firearms § 27 Other or unspecified offense IV Shotgun A Of Standard Length § 28[a] Possession—generally or without license, permit, or registration—Statute violated § 28[b] Possession—generally or without license, permit, or registration—Statute not violated § 29 Of "dangerous" or "deadly" weapon § 30 By previously convicted person § 31 During commission of crime § 32 Carrying § 33 Use § 34 Exhibition B Sawed–off or Short–barreled § 35[a] Possession—View that operability is required for violation—statute violated § 35[b] Possession—Statute not violated

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§ 35[c] Possession—View that operability is not required for violation § 35[d] Possession—View unspecified § 36 Carrying § 37 Other or unspecified offense V Machine Gun or Submachine Gun § 38[a] Possession—Statute violated § 38[b] Possession—Statute not violated § 39 Use § 40 Other or unspecified offense VI Unspecified Gun § 41[a] Possession—generally or without license, permit, or registration—View that operability is required for violation—statute violated § 41[b] Possession—generally or without license, permit, or registration—Statute not violated § 41[c] Possession—generally or without license, permit, or registration—View that operability is not required for violation § 42 By previously convicted person § 43 During commission of crime § 44 Of loaded firearm in public place § 45[a] Carrying—concealed—View that operability is required for violation—statute violated § 45[b] Carrying—concealed—Statute not violated § 45[c] Carrying—concealed—View that operability is not required for violation § 46 "Dangerous" or "deadly" weapon § 47 By previously convicted person § 48 During commission of crime § 49 Use—careless § 50 Of "dangerous" or "deadly" weapon § 51 During commission of crime § 52 Other or unspecified offense Research References INDEX Absence of weapon § 12[a] Accomplice § 3[b] Air guns § 5 Alcoholic beverages § 14 Alteration of serial numbers § 4 Ammunition §§3[a] ,7[a] ,8[a] ,9[a] ,12[a] ,23 ,25 ,29 ,30 ,39 ,41[a] ,44 ,50 Antiques §§3[a] ,7[a] ,24 Automobiles §§3[b] ,7[c] ,7[e] ,9[a] ,9[c] ,12[c] ,14 ,23 ,25 ,29 ,36 ,45[b] Barrel plugged §§10[c] ,22 ,38[a] Bolt § 23 Boring barrel § 26 Bullets §§3[a] ,7[a] ,8[a] ,9[a] ,12[a] ,23 ,25 ,29 ,30 ,39 ,41[a] ,44 ,50 Burden of proof §§3[a] ,3[b] ,5 ,7[a] ,7[c] ,8[b] ,18[a] ,20 ,21 ,35[a] ,43 ,51 Carbines § 40 Careless use § 49 Carriers § 27 Carrying weapon §§9 -15 ,25 ,32 ,36 ,45 -48 Cartridge chamber or cylinder §§3[a] ,3[b] ,7[c] ,9[a] ,9[b] ,9[c] ,10[a] ,10[c] ,11[b] ,12[c] ,14 ,15 ,18[b] ,44 Clip or magazine §§10[c] ,12[a] ,38[a] Commerce §§27 ,30 ,38[a] ,40

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Commission of crime §§8 ,13 ,17 ,18 ,31 ,43 ,48 ,51 Concealment §§7[c] ,7[d] ,8[b] ,10 ,11 ,12[b] ,32 ,43 ,45 ,48 Conspiracy to export firearms § 27 Conversion kits § 38[a] Convictions, prior §§7 ,12 ,21 ,24 ,30 ,42 ,47 Crime, during commission of §§8 ,13 ,17 ,18 ,31 ,43 ,48 ,51 Custody and control of weapon §§3 -15 ,23 ,25 ,28 -32 ,35 ,36 ,38 ,41 -48 Cylinder §§3[a] ,3[b] ,7[c] ,9[a] ,9[b] ,9[c] ,10[a] ,10[c] ,11[b] ,12[c] ,14 ,15 ,18[b] ,44 Cylinder rod § 9[b] "Dangerous" or "deadly" weapon §§3[a] ,6 ,11 ,17 ,29 ,35[a] ,46 ,50 "Deadly" or "dangerous" weapon §§3[a] ,6 ,11 ,17 ,29 ,35[a] ,46 ,50 Definitions §§3[a] ,5 ,7[e] ,8[b] ,10[c] ,18[a] ,42 Disconnect, alteration of § 38[a] Ejector mechanism § 11[b] Emergency, state of § 29 Exceptions §§9[c] ,9[d] ,12[c] ,35[a] Exhibition of weapon §§9[b] ,9[c] ,10[c] ,18[b] ,19 ,20 ,26 ,34 Expert knowledge of accused of firearms §§9[a] ,9[b] ,38[a] Firing pin §§3[a] ,4 ,7[c] ,7[d] ,9[a] ,10[c] ,12[a] ,20 ,23 ,26 ,28[b] ,30 ,35[a] ,38[a] ,41[a] ,41[c] ,43 Foreign commerce § 27 Frame of firearm §§3[b] ,7[d] ,8[b] ,9[a] ,48 Glove compartment § 3[b] Gunsmith §§9[c] ,9[d] ,35[a] Hammer §§10[b] ,10[c] ,33 Handguns §§3 -22 Homemade guns §§3[c] ,5 ,6 ,7[c] Horseplay § 10[c] Imitation guns §§3[b] ,7[c] ,10[c] Instructions to jury §§3[a] ,6 ,7[a] ,7[b] ,9[a] ,9[b] ,10[c] ,13 ,33 ,35[b] Intent to commit offense §§5 ,6 ,9[b] ,9[c] ,13 ,20 ,35[c] Internal revenue commissioner § 27 Interstate commerce § 30 Intoxicating liquors § 14 Introduction § 1 Jails § 14 Jury instructions §§3[a] ,6 ,7[a] ,7[b] ,9[a] ,9[b] ,10[c] ,13 ,33 ,35[b] Kits §§27 ,38[a] ,40 Length of weapon §§7[c] ,7[d] ,8[b] ,10[c] ,23 ,28 -37 Licenses §§3 ,9 ,28 ,41 Loaded firearms §§3[a] ,7[a] ,8 ,10[c] ,11[c] ,12[a] ,12[c] ,14 ,17 ,18[a] ,19 -21 ,23 ,25 ,35[a] ,41[a] ,44 ,45[b] ,48 ,50 ,51 Location §§3[a] ,9[c] ,9[d] ,14 ,15 ,38[a] ,44 ,45[a] Locking mechanism §§9[a] ,10[a] ,10[c] Machine guns §§7[c] ,12[a] ,35[a] ,35[c] ,38 -40 Magazine or clip §§10[c] ,12[a] ,38[a] Mainspring §§9[a] ,9[d] ,10 ,11[b] Mandatory sentencing § 8[b] M–1 carbine § 40 M–2 carbine § 40 Misfire of weapon §§9[b] ,18[b] ,41[a] Motor vehicles §§3[b] ,7[c] ,7[e] ,9[a] ,9[c] ,12[c] ,14 ,23 ,25 ,29 ,36 ,45[b] Nail used as bolt § 44 Nail used as firing pin §§23 ,38[a]

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Numbers, alteration of serial numbers § 4 Open barrel §§10[c] ,22 ,38[a] Parading with firearms § 26 Parts kits §§27 ,38[a] ,40 Permits §§3 ,9 ,28 ,41 Pistols §§3 -22 Place §§3[a] ,9[c] ,9[d] ,14 ,15 ,38[a] ,44 ,45[b] Plunger § 11[b] Pointing of weapon §§20 ,21 ,49 Porch §§3[a] ,38[a] Possession §§3 -15 ,23 ,25 ,28 -32 ,35 ,36 ,38 ,41 -48 Practice pointers § 2[b] Preliminary matters §§1 ,2 Previously convicted persons §§7 ,12 ,21 ,24 ,30 ,42 ,47 Prima facie evidence §§3[b] ,7[a] ,8[b] ,23 ,31 Probable cause § 45[a] Public places §§44 ,45[b] Punishment §§8[b] ,13 ,18[a] ,45[b] ,48 ,51 Registration §§3 ,9 ,28 ,41 Related matters § 1[b] Repairs, transporting for §§9[c] ,9[d] ,10[c] ,11[b] Revolvers §§3 -22 Rifles §§18[a] ,21 ,23 -27 Robbery §§17 ,18 Saddle piece and saddle type drum § 38[b] Safety mechanism § 7[d] Sawed–off rifle §§7[c] ,23 Sawed–off shotgun §§7[c] ,35 -37 Scope § 1[a] Sear bar connector lever § 9[b] Search § 45[a] Sear spring § 9[a] Secure wrapper §§9[c] ,12[c] Sentence and punishment §§8[b] ,13 ,18[a] ,45[b] ,48 ,51 Serial numbers altered or missing §§4 ,35[a] Short–barreled rifle §§7[c] ,23 Short–barreled shotgun §§7[c] ,35 -37 Shotguns §§18[a] ,21 ,28 -37 Spring broken or misaligned §§3[a] ,9[a] ,9[d] ,10 ,11[b] ,41[c] ,43 Standard–length shotguns §§28 -34 State of emergency § 29 Submachine gun §§35[a] ,38 -40 Summary and comment § 2 Taxation §§27 ,40 Test firings §§3[a] ,7[a] ,9[a] ,9[b] ,18[b] ,23 ,35[a] ,38[a] ,40 ,41[a] ,42 Threatening with firearms §§9[b] ,9[c] ,10[c] ,18[b] ,19 -21 ,26 ,34 Time required to make weapon operable §§9[a] ,9[b] ,6 ,18[b] ,27 ,30 ,32 ,35[a] ,38[a] ,41[c] Toy pistol § 10[c] Transfer tax §§27 ,40 Trash can §§3[a] ,38[a] Trigger defective § 35[c]

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Tubes flattened §§10[a] ,10[b] Two persons possessing component parts §§35[a] ,35[b] Unspecified guns §§41 -52 Use §§5 ,16 -18 ,33 ,39 ,49 -51 Vehicles §§3[b] ,7[c] ,7[e] ,9[a] ,9[c] ,12[c] ,14 ,23 ,25 ,29 ,36 ,45[b] Wrapper, secure §§9[c] ,12[c] Zip gun §§3[c] ,5 ,6 Table of Cases, Laws, and Rules United States 18 U.S.C.A. § 371 . See 27 18 U.S.C.A. §§ 921(a)(2) , 924(c) . See 40 18 U.S.C.A. § 921(a)(3) . See 3[a] , 3[c] , 7[c] , 13 , 18[a] , 27 , 38[a] , 42 18 U.S.C.A. §§ 921(a)(23) , 922 . See 38[a] 18 U.S.C.A. §§ 922(a)(3) , 922(e) , 924(b) . See 27 18 U.S.C.A. § 922(e) . See 27 18 U.S.C.A. § 922(g) . See 3[c] 18 U.S.C.A. § 922(h)(1) . See 7[c] 18 U.S.C.A. § 924(b) . See 27 18 U.S.C.A. § 924(c) . See 3[c] , 7[c] , 18[a] , 48 , 51 18 U.S.C.A. § 1791 . See 5 , 6 22 U.S.C.A. § 2778 . See 27 22 U.S.C.A. § 2778(b)(2) , (c) . See 27 26 U.S.C.A. § 5681(d) . See 35[a] , 37 26 U.S.C.A. § 5681 (e). See 37 26 U.S.C.A. § 5681 (f). See 37 26 U.S.C.A. §§ 5801 -5862. See 40 26 U.S.C.A. § 5841 . See 28[b] 26 U.S.C.A. § 5845 . See 27 , 38[a] 26 U.S.C.A. § 5845(b) . See 3[a] , 38[a] 26 U.S.C.A. § 5845(d) . See 28[a] , 35[a]

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26 U.S.C.A. §§ 5848 , 5851 . See 35[a] 26 U.S.C.A. § 5848 . See 40 26 U.S.C.A. § 5851 . See 23 26 U.S.C.A. § 5861(a) . See 27 26 U.S.C.A. § 5861(d) . See 3[a] , 28[a] , 35[a] , 38[a] 26 U.S.C.A. § 5861(i) . See 35[a] First Circuit U.S. v. Padilla, 393 F.3d 256 (1st Cir. 2004) — 3[c] Second Circuit U.S. v. Catanzaro, 368 F. Supp. 450 (D. Conn. 1973) — 2[b] , 35[a] U.S. v. Morales, 280 F. Supp. 2d 262 (S.D. N.Y. 2003) — 3[c] U.S. v. Rivera, 415 F.3d 284 (2d Cir. 2005) — 7[c] Third Circuit U.S. v. Kokin, 365 F.2d 595 (3d Cir. 1966) — 40 U.S. v. Theodoropoulos, 866 F.2d 587, 27 Fed. R. Evid. Serv. 633, 104 A.L.R. Fed. 205 (3d Cir. 1989) — 3[a] , 38[a] Fourth Circuit U.S. v. Robson, 391 F. Supp. 2d 383 (D. Md. 2005) — 3[a] U.S. v. Sanza, 519 F. Supp. 26 (D. Md. 1980) — 24 U.S. v. Wilson, 721 F.2d 967, 14 Fed. R. Evid. Serv. 823 (4th Cir. 1983) — 27 Fifth Circuit U.S. v. Cosey, 244 F. Supp. 100 (E.D. La. 1965) — 28[b] , 35[a] U.S. v. Perez, 897 F.2d 751 (5th Cir. 1990) — 24 U.S. v. Rouse, 462 F.2d 126 (5th Cir. 1972) — 30 U.S. v. Woods, 560 F.2d 660 (5th Cir. 1977) — 28[a] Sixth Circuit U.S. v. Bandy, 239 F.3d 802, 2001 FED App. 0031P (6th Cir. 2001) — 3[c]

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U.S. v. Butler, 101 Fed. Appx. 97 (6th Cir. 2004) — 42 U.S. v. Yannott, 42 F.3d 999, 1994 FED App. 0413P (6th Cir. 1994) — 35[c] Seventh Circuit U.S. v. Drasen, 845 F.2d 731 (7th Cir. 1988) — 2[a] , 27 U.S. v. Gometz, 879 F.2d 256, 28 Fed. R. Evid. Serv. 197 (7th Cir. 1989) — 5 , 6 U.S. v. Janik, 723 F.2d 537 (7th Cir. 1983) — 35[a] , 38[a] U.S. v. Lauchli, 371 F.2d 303 (7th Cir. 1966) — 28[b] , 40 Eighth Circuit Sipes v. U.S., 321 F.2d 174 (8th Cir. 1963) — 2[b] , 23 U.S. v. Maddix, 96 F.3d 311, 45 Fed. R. Evid. Serv. 772 (8th Cir. 1996) — 3[c] U.S. v. Pleasant, 489 F.2d 1028 (8th Cir. 1974) — 30 U.S. v. Polk, 808 F.2d 33 (8th Cir. 1986) — 2[b] , 7[c] U.S. v. Smith, 477 F.2d 399 (8th Cir. 1973) — 2[a] , 38[a] U.S. v. York, 830 F.2d 885 (8th Cir. 1987) — 7[c] Ninth Circuit U.S. v. Alverson, 666 F.2d 341 (9th Cir. 1982) — 2[b] , 38[a] U.S. v. Evans, 928 F.2d 858 (9th Cir. 1991) — 40 U.S. v. Evans, 712 F. Supp. 1435 (D. Mont. 1989) — 38[a] U.S. v. Fisher, 137 F.3d 1158 (9th Cir. 1998) — 42 U.S. v. Gonzalez, 800 F.2d 895 (9th Cir. 1986) — 48 , 51 U.S. v. Goodheim, 686 F.2d 776, 11 Fed. R. Evid. Serv. 792 (9th Cir. 1982) — 42 U.S. v. Harris, 792 F.2d 866, 20 Fed. R. Evid. Serv. 1177 (9th Cir. 1986) — 18[a] U.S. v. Thompson, 202 F. Supp. 503 (N.D. Cal. 1962) — 28[b] , 35[a] , 40 Tenth Circuit U.S. v. Allen, 235 F.3d 482 (10th Cir. 2000) — 13 U.S. v. Cavely, 318 F.3d 987, 60 Fed. R. Evid. Serv. 1052 (10th Cir. 2003) — 40 U.S. v. Priest, 594 F.2d 1383 (10th Cir. 1979) — 35[a] , 37

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U.S. v. Wonschik, 353 F.3d 1192, 63 Fed. R. Evid. Serv. 280 (10th Cir. 2004) — 38[a] Eleventh Circuit U.S. v. Adams, 137 F.3d 1298 (11th Cir. 1998) — 42 District of Columbia Circuit U.S. v. Barno, 340 F. Supp. 1326 (D.D.C. 1972) — 35[a] Alabama Atwood v. State, 53 Ala. 508, 1875 WL 1193 (1875) — 10[a] Evins v. State, 46 Ala. 88, 1871 WL 1006 (1871) — 10[b] Fielding v. State, 135 Ala. 56, 33 So. 677 (1903) — 10[a] Hutchinson v. State, 62 Ala. 3, 1878 WL 1092 (1878) — 10[a] Redus v. State, 82 Ala. 53, 2 So. 713 (1887) — 10[a] , 10[b] Roberts v. State, 26 Ala. App. 84, 153 So. 663 (1934) — 10[b] Williams v. State, 400 So. 2d 427, 37 A.L.R.4th 1174 (Ala. Crim. App. 1981) — 7[a] , 35[b] Alaska Green v. State, 579 P.2d 14 (Alaska 1978) — 49 Arizona State v. Berryman, 178 Ariz. 617, 875 P.2d 850 (Ct. App. Div. 1 1994) — 23 State v. Young, 192 Ariz. 303, 965 P.2d 37 (Ct. App. Div. 1 1998) — 35[c] Arkansas Beck v State (1984) 12 Ark App 341, 676 SW2d 740 — 39 Carr v. State, 34 Ark. 448, 1879 WL 1325 (1879) — 10[b] Hunt v. State, 354 Ark. 682, 128 S.W.3d 820 (2003) — 27 S.T. v. State, 318 Ark. 499, 885 S.W.2d 885 (1994) — 3[c] California People v. Carter, 117 Cal. App. 3d 546, 172 Cal. Rptr. 838 (2d Dist. 1981) — 15 People v. Claseman, 183 Cal. App. 3d Supp. 1, 229 Cal. Rptr. 453 (App. Dep't Super. Ct. 1986) — 10[c] , 45[b] , 48

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People v. De Falco, 176 Cal. App. 2d 590, 1 Cal. Rptr. 578 (2d Dist. 1959) — 7[d] People v. Favalora, 42 Cal. App. 3d 988, 117 Cal. Rptr. 291 (1st Dist. 1974) — 7[d] , 23 People v. Gaines, 103 Cal. App. 3d 89, 162 Cal. Rptr. 827 (1st Dist. 1980) — 2[a] , 13 , 33 , 48 People v. Guyette, 231 Cal. App. 2d 460, 41 Cal. Rptr. 875 (5th Dist. 1964) — 23 , 35[a] People v. Hale, 43 Cal. App. 3d 353, 117 Cal. Rptr. 697 (2d Dist. 1974) — 45[a] People v. Hamilton, 61 Cal. App. 4th 149, 71 Cal. Rptr. 2d 359 (4th Dist. 1998) — 6 People v. Hayden, 30 Cal. App. 3d 446, 106 Cal. Rptr. 348 (3d Dist. 1973) — 2[a] , 18[a] , 51 People v. Jackson, 92 Cal. App. 3d 899, 155 Cal. Rptr. 305 (2d Dist. 1979) — 18[a] , 33 People v. Jackson, 266 Cal. App. 2d 341, 72 Cal. Rptr. 162 (2d Dist. 1968) — 7[d] , 23 , 45[b] , 48 People v. Marroquin, 210 Cal. App. 3d 77, 258 Cal. Rptr. 290 (2d Dist. 1989) — 10[c] , 45[b] People v. McCloskey, 76 Cal. App. 227, 244 P. 930 (3d Dist. 1926) — 7[d] People v. Nelums, 31 Cal. 3d 355, 182 Cal. Rptr. 515, 644 P.2d 201 (1982) — 7[d] , 42 , 45[b] , 48 People v. Reza, 121 Cal. App. 3d 129, 175 Cal. Rptr. 126 (2d Dist. 1981) — 13 , 33 People v. Stinson, 8 Cal. App. 3d 497, 87 Cal. Rptr. 537 (4th Dist. 1970) — 23 People v. Taylor, 151 Cal. App. 3d 432, 199 Cal. Rptr. 6 (4th Dist. 1984) — 44 People v. Thompson, 72 Cal. App. 3d 1, 139 Cal. Rptr. 800 (1st Dist. 1977) — 7[d] People v. Torres, 19 Cal. App. 3d 724, 97 Cal. Rptr. 139 (4th Dist. 1971) — 18[a] , 51 People v. Williams, 56 Cal. App. 3d 253, 128 Cal. Rptr. 408 (4th Dist. 1976) — 18[a] , 51 People v. Woodard, 23 Cal. 3d 329, 152 Cal. Rptr. 536, 590 P.2d 391 (1979) — 42 , 48 Colorado People v. Vigil, 758 P.2d 670, 81 A.L.R.4th 737 (Colo. 1988) — 35[a] Connecticut State v. Banks, 59 Conn. App. 112, 755 A.2d 951 (2000) — 3[c] State v. Carpenter, 19 Conn. App. 48, 562 A.2d 35 (1989) — 3[a] , 41[a] State v. Rogers, 50 Conn. App. 467, 718 A.2d 985 (1998) — 41[a] State v. Williams, 59 Conn. App. 771, 758 A.2d 400 (2000) — 7[a] State v. Zayas, 3 Conn. App. 289, 489 A.2d 380 (1985) — 9[a]

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Delaware Papella v. State, 29 Del. 19, 6 Boyce 19, 96 A. 198 (Gen. Sess. 1915) — 11[c] Poon v. State, 880 A.2d 236 (Del. 2005) — 8[b] State v. Quail, 28 Del. 310, 5 Boyce 310, 92 A. 859 (Gen. Sess. 1914) — 11[c] District of Columbia Anderson v. U. S., 326 A.2d 807 (D.C. 1974) — 9[a] Curtice v. U.S., 488 A.2d 917 (D.C. 1985) — 3[c] , 9[a] , 9[b] Jackson v. U. S., 395 A.2d 99 (D.C. 1978) — 9[b] Lee v. U. S., 402 A.2d 840 (D.C. 1979) — 9[a] Morrison v. U. S., 417 A.2d 409 (D.C. 1980) — 9[a] Rouse v. U. S., 402 A.2d 1218 (D.C. 1979) — 9[a] Rouse v. U. S., 391 A.2d 790 (D.C. 1978) — 2[b] , 9[a] , 9[b] Townsend v. U.S., 559 A.2d 1319 (D.C. 1989) — 41[c] U.S. v. Woodfolk, 656 A.2d 1145 (D.C. 1995) — 38[a] Washington v. U.S., 498 A.2d 247 (D.C. 1985) — 35[b] Florida Dampier v. State, 596 So. 2d 515 (Fla. Dist. Ct. App. 2d Dist. 1992) — 35[a] Machado v. State, 363 So. 2d 1132 (Fla. Dist. Ct. App. 3d Dist. 1978) — 8[b] State v. Altman, 432 So. 2d 159 (Fla. Dist. Ct. App. 3d Dist. 1983) — 10[c] State v. Ware, 253 So. 2d 145 (Fla. Dist. Ct. App. 2d Dist. 1971) — 32 Georgia Bryant v. State, 169 Ga. App. 764, 315 S.E.2d 257 (1984) — 7[e] Crawford v. State, 94 Ga. 772, 21 S.E. 992 (1894) — 10[c] Herndon v. State, 229 Ga. App. 457, 494 S.E.2d 262 (1997) — 8[b] Jolly v. State, 183 Ga. App. 370, 358 S.E.2d 912 (1987) — 7[e] Mathews v. Caldwell, 5 Ga. App. 336, 63 S.E. 250 (1908) — 10[c]

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Morris v. State, 17 Ga. App. 271, 86 S.E. 462 (1915) — 9[c] Sharp v. State, 255 Ga. App. 485, 565 S.E.2d 841 (2002) — 8[b] Williams v. State, 61 Ga. 417, 1878 WL 2901 (1878) — 10[c] Illinois People v. Coburn, 25 Ill. App. 3d 542, 323 N.E.2d 559 (1st Dist. 1975) — 35[a] , 35[d] People v. Freeman, 196 Ill. App. 3d 370, 143 Ill. Dec. 73, 553 N.E.2d 780 (3d Dist. 1990) — 9[d] People v. Halley, 131 Ill. App. 2d 1070, 268 N.E.2d 449 (5th Dist. 1971) — 10[c] People v. Hughes, 123 Ill. App. 2d 115, 260 N.E.2d 34 (1st Dist. 1970) — 3[c] People v. Theobald, 43 Ill. App. 3d 897, 1 Ill. Dec. 925, 356 N.E.2d 1258 (3d Dist. 1976) — 35[a] , 35[d] People v Thompson (1973, 1st Dist) 12 Ill App 3d (abstract) 807, 299 NE2d 76 — 52 People v. White, 253 Ill. App. 3d 1097, 194 Ill. Dec. 267, 627 N.E.2d 383 (4th Dist. 1993) — 27 People v. White, 33 Ill. App. 3d 523, 338 N.E.2d 81 (1st Dist. 1975) — 16 Indiana Beck v. State, 414 N.E.2d 970 (Ind. Ct. App. 1981) — 9[c] , 12[c] Manley v. State, 656 N.E.2d 277 (Ind. Ct. App. 1995) — 9[e] Iowa State v. Key, 467 N.W.2d 583 (Iowa Ct. App. 1991) — 35[b] State v. Pinckney, 306 N.W.2d 726 (Iowa 1981) — 30 Kansas State v. Omo, 199 Kan. 167, 428 P.2d 768 (1967) — 2[b] , 12[b] State v. Pelzer, 230 Kan. 780, 640 P.2d 1261 (1982) — 18[a] Kentucky Com. v. Harris, 344 S.W.2d 820 (Ky. 1961) — 46 Bowman v. Com., 309 Ky. 414, 217 S.W.2d 967 (1949) — 2[b] , 11[b] Couch v. Com., 255 S.W.2d 478 (Ky. 1953) — 11[a] Jarvis v. Com., 306 Ky. 190, 206 S.W.2d 831 (1947) — 11[b] Mosely v. Com., 374 S.W.2d 492 (Ky. 1964) — 11[a]

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Prince v. Com., 277 S.W.2d 470 (Ky. 1955) — 11[a] Stevens v. Com., 406 S.W.2d 723 (Ky. 1966) — 11[b] Louisiana State v. Felder, 823 So. 2d 1107 (La. Ct. App. 2d Cir. 2002) — 7[c] State v. Hill, 562 So. 2d 12 (La. Ct. App. 5th Cir. 1990) — 7[c] , 24 , 30 , 42 State v. Rogers, 494 So. 2d 1251 (La. Ct. App. 2d Cir. 1986) — 24 Maine State v. Millett, 392 A.2d 521 (Me. 1978) — 7[a] State v. Nile, 557 A.2d 950 (Me. 1989) — 2[a] , 24 , 26 State v. Smith, 379 A.2d 722 (Me. 1977) — 2[a] , 7[a] Maryland Appeal No. 1124 (1974) from Circuit Court of Baltimore City Sitting as Juvenile Court, In re, 27 Md. App. 468, 340 A.2d 338 (1975) — 3[b] Brown v. State, 64 Md. App. 324, 494 A.2d 999 (1985) — 18[b] Couplin v. State, 37 Md. App. 567, 378 A.2d 197 (1977) — 9[b] , 18[b] Mangum v. State, 342 Md. 392, 676 A.2d 80 (1996) — 9[a] , 28[a] Powell v. State, 140 Md. App. 479, 780 A.2d 1219 (2001) — 3[c] White v. State, 23 Md. App. 151, 326 A.2d 219 (1974) — 18[b] Wright v. State, 70 Md. App. 616, 522 A.2d 401 (1987) — 9[b] , 18[b] York v. State, 56 Md. App. 222, 467 A.2d 552 (1983) — 18[b] Massachusetts Com. v. Bartholomew, 326 Mass. 218, 93 N.E.2d 551 (1950) — 9[b] , 38[a] Com. v. Brimley, 19 Mass. App. Ct. 978, 474 N.E.2d 1148 (1985) — 35[c] Com. v. Colton, 333 Mass. 607, 132 N.E.2d 398 (1956) — 38[a] Com. v. Mendes, 44 Mass. App. Ct. 903, 687 N.E.2d 275 (1997) — 3[a] Com. v. Murphy, 166 Mass. 171, 44 N.E. 138 (1896) — 26 Com. v. Prevost, 44 Mass. App. Ct. 398, 691 N.E.2d 592 (1998) — 9[e]

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Com. v. Raedy, 24 Mass. App. Ct. 648, 512 N.E.2d 279 (1987) — 2[b] , 9[a] , 9[b] Com. v. Rhodes, 21 Mass. App. Ct. 968, 489 N.E.2d 216 (1986) — 2[b] , 9[a] , 9[b] , 38[a] Com. v. Stallions, 9 Mass. App. Ct. 23, 398 N.E.2d 738 (1980) — 9[a] Com. v. Stephens, 67 Mass. App. Ct. 906, 857 N.E.2d 504 (2006) — 20 Michigan People v. Berberich, 105 Mich. App. 421, 306 N.W.2d 536 (1981) — 31 People v. Boswell, 95 Mich. App. 405, 291 N.W.2d 57 (1980) — 43 People v. Broach, 126 Mich. App. 711, 337 N.W.2d 642 (1983) — 8[b] People v. Brooks, 135 Mich. App. 193, 353 N.W.2d 118 (1984) — 8[b] , 43 People v. Brown, 249 Mich. App. 382, 642 N.W.2d 382 (2002) — 3[c] People v. Clark, 24 Mich. App. 440, 180 N.W.2d 342 (1970) — 45[c] People v. Gardner, 194 Mich. App. 652, 487 N.W.2d 515 (1992) — 10[a] People v. Garrett, 161 Mich. App. 649, 411 N.W.2d 812 (1987) — 43 People v. Gibson, 94 Mich. App. 172, 288 N.W.2d 366 (1979) — 43 People v. Harper, 3 Mich. App. 316, 142 N.W.2d 496 (1966) — 36 People v. Hill, 433 Mich. 464, 446 N.W.2d 140 (1989) — 35[a] People v. Huizenga, 176 Mich. App. 800, 439 N.W.2d 922 (1989) — 10[b] , 10[c] People v. Jackson, 108 Mich. App. 346, 310 N.W.2d 238 (1981) — 8[b] , 43 People v. Jiminez, 27 Mich. App. 633, 183 N.W.2d 853 (1970) — 10[b] , 10[c] People v. Mason, 96 Mich. App. 47, 292 N.W.2d 480 (1980) — 8[b] , 43 People v. Nixon, 13 Mich. App. 684, 164 N.W.2d 775 (1968) — 25 People v. Peals, 476 Mich. 636, 720 N.W.2d 196 (2006) — 41[c] People v. Pierce, 119 Mich. App. 780, 327 N.W.2d 359 (1982) — 8[b] , 43 People v. Poindexter, 138 Mich. App. 322, 361 N.W.2d 346 (1984) — 8[b] , 43 People v. Prather, 121 Mich. App. 324, 328 N.W.2d 556 (1982) — 2[a] , 8[b] People v. Ray, 119 Mich. App. 724, 326 N.W.2d 622 (1982) — 8[b]

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People v. Sanchez, 98 Mich. App. 562, 296 N.W.2d 312 (1980) — 10[c] People v. Stephenson, 94 Mich. App. 300, 288 N.W.2d 364 (1979) — 8[b] People v. Thompson, 189 Mich. App. 85, 472 N.W.2d 11 (1991) — 8[b] Minnesota Gerdes v. State, 319 N.W.2d 710 (Minn. 1982) — 35[c] State v. Knaeble, 652 N.W.2d 551 (Minn. Ct. App. 2002) — 41[c] Mississippi Burnside v. State, 105 Miss. 408, 62 So. 420 (1913) — 2[a] , 10[b] , 10[c] Mitchell v. State, 99 Miss. 579, 55 So. 354 (1911) — 10[b] , 10[c] Missouri State v. Baty, 511 S.W.2d 139 (Mo. Ct. App. 1974) — 11[a] State v. Casto, 119 Mo. App. 265, 95 S.W. 961 (1906) — 11[b] State v. Chunn, 641 S.W.2d 829 (Mo. Ct. App. E.D. 1982) — 17 , 18[a] State v. Larkin, 512 S.W.2d 911 (Mo. Ct. App. 1974) — 14 , 34 State v. Morris, 263 Mo. 339, 172 S.W. 603 (1915) — 19 State v. Overshon, 528 S.W.2d 142 (Mo. Ct. App. 1975) — 19 State v. Phillips, 629 S.W.2d 522 (Mo. Ct. App. W.D. 1981) — 45[c] State v. Rector, 328 Mo. 669, 40 S.W.2d 639 (1931) — 2[b] , 11[a] , 14 , 34 State v. Tilley, 569 S.W.2d 346 (Mo. Ct. App. 1978) — 17 , 18[a] State v. Wallace, 825 S.W.2d 626 (Mo. Ct. App. E.D. 1992) — 35[c] State v. Williams, 784 S.W.2d 276 (Mo. Ct. App. E.D. 1989) — 27 Nebraska Cory P., In re, 7 Neb. App. 397, 584 N.W.2d 820 (1998) — 10[c] State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002) — 8[b] , 17 State v. Lee, 195 Neb. 348, 237 N.W.2d 880 (1976) — 7[a] Nevada Barnes v. Housewright, 603 F. Supp. 330 (D. Nev. 1985) (applying Nevada law) — 8[a]

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Rusling v. State, 96 Nev. 778, 617 P.2d 1302 (1980) — 7[a] New Jersey State v. Cole, 154 N.J. Super. 138, 381 A.2d 40 (App. Div. 1977) — 3[a] State v. Elrose, 277 N.J. Super. 548, 649 A.2d 1351 (App. Div. 1994) — 3[c] , 27 , 38[a] State v. Gantt, 101 N.J. 573, 503 A.2d 849 (1986) — 2[a] , 8[b] , 18[a] State v. Harmon, 203 N.J. Super. 216, 496 A.2d 707 (App. Div. 1985) — 5 State v. Middleton, 143 N.J. Super. 18, 362 A.2d 602 (App. Div. 1976) — 7[c] State v. Morgan, 121 N.J. Super. 217, 296 A.2d 539 (App. Div. 1972) — 3[a] State v. Orlando, 269 N.J. Super. 116, 634 A.2d 1039 (App. Div. 1993) — 28[a] State v. Schultheis, 113 N.J. Super. 11, 272 A.2d 544 (App. Div. 1971) — 3[a] New York Alex A., Matter of, 189 A.D.2d 596, 592 N.Y.S.2d 305 (1st Dep't 1993) — 3[b] Alex B., Matter of, 189 A.D.2d 813, 592 N.Y.S.2d 435 (2d Dep't 1993) — 3[b] B., In re, 66 Misc. 2d 279, 320 N.Y.S.2d 813 (Fam. Ct. 1971) — 3[b] , 6 Francisco C., In re, 238 A.D.2d 224, 657 N.Y.S.2d 16 (1st Dep't 1997) — 3[b] Gift & Luggage Outlet, Inc. v. People, 194 Misc. 2d 582, 756 N.Y.S.2d 717 (Sup 2003) — 22 People v. Actie, 99 A.D.2d 815, 472 N.Y.S.2d 147 (2d Dep't 1984) — 3[b] People v. Aguilar, 202 A.D.2d 512, 609 N.Y.S.2d 76 (2d Dep't 1994) — 3[b] People v. Amato, 99 A.D.2d 495, 470 N.Y.S.2d 441 (2d Dep't 1984) — 17 , 50 People v. Ansare, 96 A.D.2d 96, 468 N.Y.S.2d 269 (4th Dep't 1983) — 3[a] People v. Aponte, 249 A.D.2d 553, 673 N.Y.S.2d 148 (2d Dep't 1998) — 41[a] People v. Blackwell, 176 Misc. 2d 896, 675 N.Y.S.2d 486 (City Crim. Ct. 1998) — 3[b] People v. Boitano, 18 N.Y.S.2d 644 (County Ct. 1940) — 3[b] People v. Burdash, 102 A.D.2d 948, 478 N.Y.S.2d 89 (3d Dep't 1984) — 2[b] , 3[b] People v. Cavines, 70 N.Y.2d 882, 524 N.Y.S.2d 178, 518 N.E.2d 1170 (1987) — 41[a] People v. Ciola, 136 A.D.2d 557, 523 N.Y.S.2d 553 (2d Dep't 1988) — 41[a]

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People v. De Bernardo, 199 Misc. 563, 106 N.Y.S.2d 515 (County Ct. 1951) — 7[a] People v. De Witt, 285 A.D. 1157, 140 N.Y.S.2d 190 (2d Dep't 1955) — 3[b] , 6 , 7[b] People v. Donaldson, 49 A.D.2d 1004, 374 N.Y.S.2d 169 (4th Dep't 1975) — 41[b] People v. Francis, 126 A.D.2d 740, 511 N.Y.S.2d 136 (2d Dep't 1987) — 3[a] People v. Fwilo, 47 A.D.2d 727, 365 N.Y.S.2d 194 (1st Dep't 1975) — 6 People v. Grillo, 15 A.D.2d 502, 222 N.Y.S.2d 630 (2d Dep't 1961) — 4 , 41[a] People v. Harvin, 126 Misc. 2d 775, 483 N.Y.S.2d 913 (City Crim. Ct. 1984) — 2[b] , 3[b] People v. Johnson, 42 Misc. 2d 164, 247 N.Y.S.2d 692 (Sup 1964) — 3[b] People v. Lewis, 39 A.D.3d 565, 834 N.Y.S.2d 227 (2d Dep't 2007) — 3[a] People v. Longshore, 86 N.Y.2d 851, 633 N.Y.S.2d 475, 657 N.E.2d 496 (1995) — 24 , 30 People v. Mott, 112 Misc. 2d 833, 447 N.Y.S.2d 632 (Sup 1982) — 3[a] People v. Ramsey, 124 A.D.2d 835, 508 N.Y.S.2d 553 (2d Dep't 1986) — 2[b] , 3[a] People v. Robles, 251 A.D.2d 20, 673 N.Y.S.2d 654 (1st Dep't 1998) — 41[b] People v. Rosenfeld, 93 A.D.2d 872, 461 N.Y.S.2d 383 (2d Dep't 1983) — 41[a] People v. Shaffer, 66 N.Y.2d 663, 495 N.Y.S.2d 965, 486 N.E.2d 823 (1985) — 50 People v. Simmons, 125 Misc. 2d 118, 479 N.Y.S.2d 135 (City Crim. Ct. 1984) — 52 People v. Simons, 124 Misc. 28, 207 N.Y.S. 56 (Spec. Sess. 1924) — 3[b] , 6 People v. Tardibuono, 174 Misc. 305, 20 N.Y.S.2d 633 (Gen. Sess. 1940) — 3[a] , 6 People v. Todd, 153 Misc. 2d 579, 582 N.Y.S.2d 352 (City Crim. Ct. 1992) — 22 People v. Walston, 147 Misc. 2d 679, 556 N.Y.S.2d 197 (City Crim. Ct. 1990) — 28[a] People v. Woods, 202 Misc. 562, 114 N.Y.S.2d 611 (Magis. Ct. 1952) — 38[b] People v. Zakrzewski, 7 A.D.3d 823, 777 N.Y.S.2d 207 (3d Dep't 2004) — 3[c] People, on Complaint of Di Buono v. Haskins, 190 Misc. 888, 76 N.Y.S.2d 636 (City Ct. 1948) — 2[b] , 6 Rosenfeld v. Dunham, 820 F.2d 52 (2d Cir. 1987) (applying New York law) — 2[b] , 3[a] North Carolina State v. Baldwin, 34 N.C. App. 307, 237 S.E.2d 881 (1977) — 30 State v. Dobbins, 277 N.C. 484, 178 S.E.2d 449 (1971) — 29

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State v. Fennell, 95 N.C. App. 140, 382 S.E.2d 231 (1989) — 35[a] State v. Jackson, 353 N.C. 495, 546 S.E.2d 570 (2001) — 3[c] State v. McCree, 160 N.C. App. 200, 584 S.E.2d 861 (2003) — 3[c] Ohio Booker v. Engle, 517 F. Supp. 558 (S.D. Ohio 1981) (applying Ohio law) — 2[b] , 7[a] , 24 , 30 State v. Adkins, 40 Ohio App. 2d 473, 69 Ohio Op. 2d 416, 320 N.E.2d 308 (7th Dist. Columbiana County 1973) — 2[b] , 7[a] , 24 , 28[a] , 30 State v. Jeffers, 143 Ohio App. 3d 91, 757 N.E.2d 417 (1st Dist. Hamilton County 2001) — 8[a] Oklahoma Bolton v. State, 1985 OK CR 75, 702 P.2d 1040 (Okla. Crim. App. 1985) — 12[a] Dilworth v. State, 1980 OK CR 33, 611 P.2d 256 (Okla. Crim. App. 1980) — 2[b] , 20 Hunnicutt v. State, 1988 OK CR 91, 755 P.2d 105 (Okla. Crim. App. 1988) — 3[b] Jennings v. State, 1982 OK CR 42, 643 P.2d 643 (Okla. Crim. App. 1982) — 2[b] , 20 M. D. B., Matter of, 1980 OK CR 68, 617 P.2d 234 (Okla. Crim. App. 1980) — 20 Nelson v. State, 1984 OK CR 86, 687 P.2d 744 (Okla. Crim. App. 1984) — 2[b] , 3[b] , 12[a] Prock v. State, 1975 OK CR 213, 542 P.2d 522 (Okla. Crim. App. 1975) — 2[b] , 46 , 47 Ray v. State, 1968 OK CR 113, 443 P.2d 120 (Okla. Crim. App. 1968) — 12[a] Sims v. State, 1988 OK CR 193, 762 P.2d 270 (Okla. Crim. App. 1988) — 6 , 7[c] Wimberly v. State, 1985 OK CR 37, 698 P.2d 27 (Okla. Crim. App. 1985) — 21 Oregon State v. Bennett, 79 Or. App. 267, 719 P.2d 38 (1986) — 42 State v. Cartwright, 246 Or. 120, 418 P.2d 822 (1966) — 2[b] , 7[a] State v. Hash, 34 Or. App. 281, 578 P.2d 482 (1978) — 7[a] State v. Thomas, 244 Or. 377, 418 P.2d 837 (1966) — 7[a] State v. Turechek, 74 Or. App. 228, 702 P.2d 1131 (1985) — 3[a] Pennsylvania Com. v. Grab, 54 Pa. D. & C. 233, 1946 WL 2362 (Quar. Sess. 1946) — 22

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Com. v. Holguin, 254 Pa. Super. 295, 385 A.2d 1346 (1978) — 2[b] , 9[a] Com. v. Horshaw, 237 Pa. Super. 76, 346 A.2d 340 (1975) — 45[a] Com. v. Layton, 452 Pa. 495, 307 A.2d 843 (1973) — 2[a] , 2[b] , 7[b] , 9[a] , 35[c] , 42 , 45[a] Com. v. Layton, 220 Pa. Super. 435, 288 A.2d 908 (1972) — 22 Com. v. Lee, 224 Pa. Super. 17, 302 A.2d 474 (1973) — 22 Com. v. Ponds, 236 Pa. Super. 107, 345 A.2d 253 (1975) — 2[a] , 35[c] Com. v. Townsend, 211 Pa. Super. 135, 235 A.2d 461 (1967) — 9[a] , 11[a] Commonwealth v Yaple (1976) 238 Pa Super 236, 357 A2d 617 — 7[b] , 9[a] , 42 , 45[a] Rhode Island State v. Benevides, 425 A.2d 77 (R.I. 1981) — 2[b] , 9[a] State v. Crudup, 842 A.2d 1069 (R.I. 2004) — 3[c] Texas Britton v. State, 57 Tex. Crim. 583, 124 S.W. 684 (1910) — 9[d] Campbell v. State, 633 S.W.2d 592 (Tex. App. Amarillo 1982) — 23 , 35[a] Cook v. State, 11 Tex. App. 19, 1881 WL 9602 (Ct. App. 1881) — 9[b] Crain v. State, 69 Tex. Crim. 55, 153 S.W. 155 (1913) — 9[a] Davis v. State, 77 Tex. Crim. 598, 179 S.W. 702 (1915) — 9[b] Farris v. State, 64 Tex. Crim. 524, 144 S.W. 249 (1912) — 9[a] Fitzgerald v. State, 52 Tex. Crim. 265, 106 S.W. 365 (1907) — 9[d] Johnson v. State, 571 S.W.2d 170 (Tex. Crim. App. 1978) — 9[a] Jones v. State, 91 Tex. Crim. 240, 238 S.W. 661 (1922) — 9[a] K.H., In re, 169 S.W.3d 459 (Tex. App. Texarkana 2005) — 52 Miles v. State, 77 Tex. Crim. 597, 179 S.W. 567 (1915) — 9[b] Moore v. State, 385 S.W.2d 387 (Tex. Crim. App. 1965) — 9[a] Rasberry v. State, 72 Tex. Crim. 13, 160 S.W. 682 (1913) — 9[a] Roberts v. State, 60 Tex. Crim. 111, 131 S.W. 321 (1910) — 9[c]

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Smith v. State, 89 Tex. Crim. 606, 232 S.W. 811 (1921) — 9[b] Smith v. State, 96 S.W. 1086 (Tex. Crim. App. 1906) — 9[a] Steele v. State, 73 Tex. Crim. 352, 166 S.W. 511 (1914) — 9[a] Thomas v. State, 36 S.W.3d 709 (Tex. App. Houston 1st Dist. 2001) — 3[c] Thornton v. State, 529 S.W.2d 539 (Tex. Crim. App. 1975) — 2[a] , 23 , 35[a] Tolbert v. State, 157 Tex. Crim. 101, 246 S.W.2d 896 (1952) — 2[b] , 9[a] Underwood v. State, 29 S.W. 777 (Tex. Crim. App. 1895) — 9[d] White v. State, 66 S.W. 773 (Tex. Crim. App. 1902) — 9[b] Virginia Armstrong v. Com., 263 Va. 573, 562 S.E.2d 139 (2002) — 24 McDaniel v. Com., 264 Va. 429, 574 S.E.2d 234 (2002) — 3[a] Rogers v. Com., 14 Va. App. 774, 418 S.E.2d 727 (1992) — 35[c] Timmons v. Com., 15 Va. App. 196, 421 S.E.2d 894 (1992) — 3[c] Williams v. Com., 49 Va. App. 439, 642 S.E.2d 295 (2007) — 3[c] Washington State v. Anderson, 94 Wash. App. 151, 971 P.2d 585 (Div. 1 1999) — 41[c] State v. Padilla, 95 Wash. App. 531, 978 P.2d 1113 (Div. 1 1999) — 41[c] West Virginia State v. Tapit, 52 W. Va. 473, 44 S.E. 231 (1903) — 9[c] Wisconsin State v. Johnson, 171 Wis. 2d 175, 491 N.W.2d 110 (Ct. App. 1992) — 35[c] State v. Rardon, 185 Wis. 2d 701, 518 N.W.2d 330 (Ct. App. 1994) — 7[c] Wyoming Benson v. State, 640 P.2d 83 (Wyo. 1982) — 2[b] , 7[a] I. Preliminary Matters § 1[a] Introduction—Scope This annotation collects and analyzes the cases in which the courts have discussed or decided whether, or under what

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circumstances, the fact that a gun,[FN1 ] allegedly possessed or used in violation of a weapons or gun control statute,[FN2 ] was or may have been broken, dismantled, or inoperable[FN3 ] affects the guilt or innocence of the accused, the degree of the offense, or the severity of the mandatory sentence imposed, as distinguished from its effect on discretionary sentencing once the degree of the offense has been determined.[FN4 ] A number of jurisdictions have rules, regulations, constitutional provisions, or legislative enactments bearing on this subject. Sin these are discussed here only to the extent that they are reflected in the reported cases within the scope of this annotation, the reader is advised to consult the appropriate statutory or other compilations. § 1[b] Introduction—Related matters Related Annotations are located under the Research References heading of this Annotation. § 2[a] Summary and comment—Generally The effect, or lack of effect, on criminal responsibility under a weapons statute, of the fact that a gun was broken, dismantl inoperable has been discussed in cases involving a vast array of offenses, ranging from possession of a pistol (§ 3 ) to use of a 39 machine gun (§ ). While overall there have been far more decisions supporting the defendant's guilt than innocence in inoperable gun cases (§§ 3 52 ), this is not true for every kind of offense, and the particular facts of the cases must be examined in relation to the specific statutory language under which the defendant was charged.[FN5 ] Where the firearm involved was a pistol, revolver, or handgun and the offense charged was possession—either generally or without a license or permit or without registration—the courts have usually, (§ 3[a] , 3[b] ), but not always (§ 3[c] ), taken the position that operability was a requirement for violation of the statute; and in such cases the operability of the gun has more often been 3[a] ) than not established (§ 3[b] established (§ ). Operability has also been held required but not established in handgun cases in which the offense charged was possession of pistol with an altered serial number (§ 4 ) or possession of a dangerous weapon (§ 6 ). However, the view that operability is not required—at least for a prima facie case of violation of the statute—is supported by most of the handgun cases involving the offense of possession during the commission of a crime (§ 8[b] ), although there is contrary authority in one jurisdiction (§ 8[a] ), and further supported by the handgun cases involving the offense of possession of an object designed or intended to be used dangerous weapon or the offense of possession of a firearm with intent to use it unlawfully against the person of another (§ 5 ). A final kind of offense that has arisen in handgun possession cases is that of possession by a previously convicted person (§ 7 ). The pattern of results in these cases is similar to that observed in the cases decided under general possession statutes (§ 3 ). That is, the courts have usually (§ 7[a] , 7[b] , 7[d] , 7[e] ), but not always (§ 7[c] , 7[d] , 7[e] ), taken the position that operability was a requirement for violation of the statute; and in such cases the operability of the gun has more often been held established (§ 7[a] , 7[d] , 7[e] ) than not established (§ 7[b] , 7[d] )—and by a greater margin than that in the general possession cases (§ 3[a] , 3[b] ). A step up in seriousness from the relatively passive possession offenses (§§ 3 - 8 ) is the category of handgun cases involving 15 the carrying of firearms (§§ 9 ). Where the offense was carrying in general or carrying without a license or permit or without registration (§ 9 ), the courts, except in cases in which no general view was at issue because of a statutory exception (§ 9[c] , 9[d] ), have apparently adopted the view that operability was a requirement for violation of the statute (§ 9[a] , 9[b] ). In these cases, operability has been held established (§ 9[a] ) about twice as often as not established (§ 9[b] ). On the other hand, the cases involving a broken, dismantled, or inoperable handgun are about evenly divided as to whether such a carrying statute was violated where the central issue was the construction of a statutory exception—such as for carrying a gun to or from a place of repair (§ 9[c] , 9[d] ). Under statutes prohibiting the carrying of concealed weapons (§ 10 ), the cases are about evenly divided between those in which operability was regarded as a requirement for violation (§ 10[a] , 10[b] ) and those in which it was not (§ 10[c] ); in jurisdictions in which operability is required, operability has been held established (§ 10[a] ) and not 10[b] established (§ ) in an equal number of cases. Other handgun offenses involve the carrying of a "dangerous" or "deadly" weapon (§ 11 ). There is

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some authority in such cases for the view that operability is not required for violation of the statute (§ 11[c] ), but more often the courts appear to have required operability, holding operability established in some cases (§ 11[a] ) and not established in others (§ 11[b] ). Within the few handgun cases in which the offense involved carrying by a previously convicted person (§ 12 ), there is some authority holding that operability was a requirement for violation of the statute and that this requirement had been met (§ 12[a] ), other authority supporting the view that operability was not required (§ 12[b] ), and finally a case in which the court, without stating a general view regarding whether operability was required, held that the dismantled handgun in question did not come within a statutory exception for carrying a handgun unloaded and in a secure wrapper to a place of repair (§ 12[c] ). Although, in a defective revolver case, operability has been held not a requirement for violation of a statute prohibiting anyone 15 from knowingly bringing a firearm into a jail (§ ), operability—at least in the sense of being readily made operable—has apparently been considered a requirement for violation of a statute that proscribed carrying a revolver in an automobile in which intoxicating liquor was being transported, the court in the latter case holding that the rusty condition of the revolver in question did not preclude a violation under the particular 14 circumstances (§ ); and in a case involving a statute prescribing an enhanced penalty for the commission of certain crimes while armed with a firearm, the court recognized that operability was a requirement for violation of the statute but held that a contrary jury instructio was not prejudicial in the absence of evidence that the handgun in question was inoperable (§ 13 ). A more dangerous offense than possession (§§ 3 - 8 ) or carrying (§§ 9 - 15 ) of a handgun is its use (§§ 16 - 18 ). The inoperability of a pistol has been held, in one case, not to exempt it from an unlawful use of weapons statute (§ 16 ). Where the statute involved in another handgun case referred to the use of a deadly weapon, operability was held to be a requirement, which 17 was not met, for violation of the statute (§ ). A number of handgun cases have involved the offense of use of a firearm during the commission of a crime, and the courts several jurisdictions have taken the position that operability was not required for violation of the governing statute (§ 18[a] ); in Maryland the courts have expressed somewhat divergent views as to the need to prove operability under such a statute, and the results in these Maryland handgun cases have also differed as to whether a violation of the statute was established under the particular circumstances (§ 18[b] ). 18 Closely related to handgun use offenses (§§ 16 ) are the offenses of exhibiting a pistol in a rude, angry, and threatening manner (§ 19 ) and pointing weapons (§§ 20 , 21 )—either generally (§ 20 ) or by a previously convicted person (§ 21 ). In all of these situations, the few courts deciding handgun cases have held or indicated that operability was not required f violation, or at least for a prima facie case of violation, of the statute in question (§§ 19 - 21 ). In another case, involving a pistol but an unspecified offense, the court, although holding that the statute in question had been violated, recognized that inoperability—in the sense of not being readily made operable—would be a defense if established (§ 22 ). The violation of a statute creating a criminal offense involving the possession of a sawed–off or short–barreled rifle or firearm h been held established or supportable on a variety of grounds, even though the rifle in question was broken, dismantled, or missing a part (§ 23 ). With respect to rifles of standard, or apparently standard, length (§§ 24 - 27 ), the courts have held that operability was not a requirement for the offenses of being a convicted felon in possession of a firearm (§ 24 ) and parading or threatening with 26 firearms (§ ). However, a rifle in one case has been held not a dangerous weapon per se in the absence of evidence of operability, under a statute making it a criminal offense to carry a dangerous weapon in a vehicle (§ 25 ); and in cases involving various other offenses, related to the transfer or transport of, or dealing in, firearms, the courts have held that the statutes involved were violated even though the rifles in question, at the time of the offenses, had been unassembled or otherwise inoperable, where there was evidenc that they could have been readily restored to operability (§ 27 ). Broken, dismantled, or incomplete shotguns of standard, or apparently standard, length have been involved in criminal prosecutions under a variety of weapons statutes (§§ 28 - 34 ). Where the alleged offense was possession generally or possession without a license or permit or without registration, the courts have sometimes held that a violation of the statute was estab supportable, where there was evidence that the shotgun was operable or could be readily made operable (§ 28[a] ), although such a violation has been held not established under the particular circumstances of one case, the court reasoning in part that the gun could

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not have been readily restored to operability (§ 28[b] ). The view that operability is not required for violation, or at least for a prima facie case of violation, of a weapons statute has been expressed in standard–length shotgun cases involving the offenses of possession of a shotgun or firearm by a previously convicted person (§ 30 ), possession of a firearm during the commission of a felony (§ 31 ), use of a firearm in the commission of certain crimes (§ 33 ), and exhibition of a deadly weapon in a rude, angry, and 34 threatening manner (§ ). On the other hand, one court, noting facts that indicated that the defendant could have readily assembled the disassembled shotgun in question, which was apparently of standard length, held that the defendant had violated a statute prohibiting the willfu and unlawful possession of a dangerous weapon in a certain area (§ 29 ). Moreover, a violation of a statute prohibiting the carrying of a concealed firearm has been held supportable in a case involving a shotgun of apparently standard length, where there w evidence that the disassembled shotgun could have been readily restored to operability (§ 32 ). In cases of possession offenses involving sawed–off or short–barreled shotguns (§ 35 ), the courts have usually taken the position that operability—at least in the sense of being readily made operable—was a requirement for violation of the statute question (§ 35[a] , 35[b] ), and within that group of cases the courts have usually (§ 35[a] ), but not always (§ 35[b] ), held that this requirement had been met under the particular circumstances. However, the view that operability was not a requirement for violation of a weapons possession statute has also been expressed in sawed–off or short–barreled shotgun cases (§ 35[c] ). Further, under the particular circumstances of one case, involving separate sawed–off shotgun parts, the court, without clearly decidin whether operability was a requirement for violation of the weapons possession statute in question, held that the parts did no constitute a "shotgun" in violation of the statute (§ 35[d] ). In another case, although the statute in question prohibited the carrying of a dangerous weapon in a vehicle occupied by defendant, the court, without taking a clear position regarding the existence of a requirement of operability for violation of th weapons statute in question, held that under the particular circumstances the disassembled sawed–off shotgun at issue was "dangerous weapon" in violation of the statute (§ 36 ). Finally, in a case involving the offenses of illegal transfer and illegal making of a sawed–off shotgun, the court held that a prima facie case of operability of the weapon had been established (§ 37 ). In cases in which the gun in question was a machine gun or submachine gun (§§ 38 - 40 ), the courts have consistently required operability—at least in the sense of being readily made operable—for violation of the pertinent weapons statute and h nearly always held that such operability was established in the particular circumstances, whether the offense at issue invol possession (§ 38[a] ), use (§ 39 ), or transferring or dealing in machine guns (§ 40 ). It has been held in one case, however, that a statute prohibiting the possession of a machine gun was not violated where the absence of two vital parts, not found in the possession of either defendant, made it impossible for the gun to fire more than one shot at a time (§ 38[b] ). A final group of cases is that in which the kind of gun at issue was not specified (§§ 41 - 52 ). In unspecified gun cases in which the defendant was charged with possession—either generally or without a license or permit or without registration—som courts have apparently adopted the view that operability was a requirement for violation of the weapons statute in question and have usually (§ 41[a] ), but not always (§ 41[b] ), held that the statute had been violated; one court has held that operability was not a requirement for violation in that situation (§ 41[c] ). It has also been held, in a few unspecified gun cases decided under a statute prohibiting possession of a firearm by a prev convicted person, that the operability requirement was met (§ 42 ). On the other hand, where the offense in question was possession of a firearm during the commission of a crime (§ 43 ) or possession of a loaded firearm in a public place (§ 44 ), the courts in unspecified gun cases have taken the position that operability was not a requirement for violation, or for a prima facie case of violation, of the pertinent statute. The offense of carrying a concealed weapon or firearm has been involved in several unspecified gun cases in which the e inoperability was considered (§ 45 ). The results in such cases have been diverse, with the courts sometimes recognizing that operability is a requirement for violation of the statute—at least when evidence of inoperability is introduced—but holding that the statute had been violated under th particular circumstances (§ 45[a] ), or had not been violated (§ 45[b] ), and sometimes recognizing that operability is not required (§ 45[c] ). Operability has been recognized to be a requirement for violation of a statute prohibiting the carrying of a concealed deadly weapon in a case involving an unspecified kind of gun (§ 46 ). Similarly, under a statute prohibiting the carrying of a firearm by a person previously convicted of a felony, the court, in anoth

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case involving an unspecified kind of gun, apparently took the position that operability was a requirement for violation of the statute and held that a violation of the statute had been established (§ 47 ). However, where the statute provided an enhanced penalty for a person who is armed with a firearm during the commission or attempted commission of a felony, it has been h operability was not a requirement for violation of the statute (§ 48 ). As to offenses concerning the use of firearms in unspecified gun cases (§§ 49 - 51 ), it has been held or recognized that operability was not a requirement, at least in certain circumstances, where the statute in question prohibited the careless use o firearms (§ 49 ) or provided an enhanced penalty for using a firearm in the commission of certain crimes (§ 51 ). Nevertheless, operability has been held to be a requirement, which had not been established, for violation of a statute creating an offense involving the use of a deadly weapon (§ 50 ). Finally, according to the court in an unspecified gun case, operability was not a requirement for violation of a statute making i offense to fail to produce a firearm owner's identification card (§ 52 ). When the cases within the scope of this annotation are considered as a whole (§§ 3 - 52 ), certain patterns emerge. First, the ratio of decisions for the prosecution to decisions for the defendant has been greater where the firearm in question was a rifle (§§ 23 - 27 ), shotgun (§§ 28 - 34 ), or machine gun (§§ 38 - 40 ) than where it was a less powerful pistol, revolver, or handgun (§§ 3 ).[FN6 22 ] Second, within these groups there has also been a tendency for the results to swing more heavily in favor of the prosecution as the seriousness of the offense increases from possession (§§ 3 - 8 , 23 , 24 , 28 - 31 , 35 , 38 , 41 - 44 ) to carrying (§§ 9 - 15 , 25 , 32 , 36 , 45 - 48 ), to use (§§ 16 - 18 , 33 , 39 , 49 - 51 ), exhibition (§§ 19 , 34 ), pointing (§§ 20 , 21 ), or the like (§ 26 ). Third, there has been a trend, over time, by the courts and legislatures toward dealing more strictly with inoperable gun situations, weakening or eliminating inoperability as a defense (§§ 3 52 ).[FN7 ] When the courts have decided that operability was required, they have often relied on particular statutory language as compellin that view, such as a definition of a firearm as any weapon, whether loaded or unloaded, that will expel a projectile by the action of an explosive.[FN8 ] Thus, as might be expected, the courts have tended to require operability where the statute creating the offense referred "dangerous" or "deadly" weapon (§§ 6 , 11 [a, b], 17, 25, 29, 46, 50; but see §§ 11[c], 34, 36). Conversely, where the statute was framed in terms of possession, carrying, or use of a firearm during the commission of crime, the courts have usually (§§ 8 , 18 , 31 , 43 , 48 , 51 ), but not always (§§ 13 , 18[b] ), taken the position that operability was not an element of the offense. One typical rationale for this view has been that the legislature was concerned about more than the defendant's firing of the weapon during the commission of a crime; in response to the weapon, operable or not, a victim or law officer may resort to violence as a defensive reaction.[FN9 ] Another common rationale is that to require operability could prevent prosecution where the weapon is not recovered even though the victim testifies as to its existence.[FN10 ] Courts have often attempted to solve this problem by creating a rebuttable presumption or inference of operability.[FN11 ] One court, however, refusing to invoke the fiction of a legal presumption of operability, commented that such a rule would invariably invite assertions of inoperability by defendants hopeful of gaining some advantage in the murky waters of law characteristic of rebuttabl presumptions and shifting burdens of proof.[FN12 ] A complicating factor running through all of the cases in this annotation is the fact that the courts use the term "inoperable" i different ways, so that operability becomes a matter of degree (§§ 3 - 52 ). At one extreme is a case of a pistol that was so rusty and filled with dirt that it could not be opened, loaded, unloaded, cocked, fired, or otherwise made to work, the court emphasizing that the pistol was permanently—not temporarily—inefficient.[FN13 ] At the other end of the spectrum is a case involving kits composed of major rifle sections already assembled, leaving only a few of the assembled sections to be quickly and easily slipped into position so as to be ready to fire, the court refusing to create a loophole in the law for functional but unassembled firearms.[FN14 ] However, even in cases in which the courts have applied a "readily made operable" or similar test, the line has been difficult to draw regarding the time needed to assemble or repair the gun. Thus, while a court had no difficulty in affirming a conviction unlawful possession of a short–barreled firearm where a police officer testified that it took him between half a second and 2 seconds to put the stock and barrel of the shotgun in question together so that it would shoot,[FN15 ] it has also been held that a

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submachine gun could be, in the key statutory language, "readily restored to shoot, automatically," even though the process of restoration would have required an 8–hour working day in a properly equipped machine shop.[FN16 ] § 2[b] Summary and comment—Practice pointers In a jurisdiction in which operability of the gun was required for conviction of the particular weapons offense in question, it has been noted that operability is most commonly and conveniently established through the introduction of a ballistics report, although, as with any element of a crime, it may be established by circumstantial evidence.[FN17 ] The following example is typical of the nature of a ballistics expert's testimony: (1) the revolver admittedly possessed by the defendant was operable; (2) when the expert test–fired it twice, it discharged each time; and (3) although the revolver had a cylinder that did not lock into perfect alignment with the hammer and barrel, it could easily be made to align by using the free hand to move the cylinder slightly.[FN18 ] Similarly, police officers often demonstrate at trial the rapid assembly of a gun found disassembled in the defendant's possession.[FN19 ] Defense counsel may want to avoid certain kinds of attacks on such evidence at trial that may have the effect of waiving an argument on appeal. In one case, for instance, the appellate court rejected a defense contention that the state had failed to prove operability, where the state had attempted to show, through a police officer, that the gun in question actually would work, but the trial judge had sustained a defense objection and had allowed the officer only to testify that the gun worked but not to show that it worked.[FN20 ] Similarly, where the trial judge had sustained a defense objection, on the grounds of irrelevancy and immateriality, to testimony that the gun at issue had been test–fired, the appellate court refused to allow the defense to complain on appeal about the state's failure to produce such evidence when the defense had precluded the state from doing so.[FN21 ] Apart from expert testimony or demonstrations of operability, circumstantial evidence of various kinds has been used to e operability, depending on the circumstances. In a typical case, the court, upholding the sufficiency of such evidence, noted that (1 the gun in question was introduced into evidence; (2) a police officer testified that the gun was loaded; (3) the defendant was see with the gun in his hand; and (4) the defendant fled when he saw the police officer.[FN22 ] Other such circumstantial evidence of operability has included a bystander's testimony that he heard a shot and felt something "whiz" by his ear,[FN23 ] a defendant's self–incriminatory statement,[FN24 ] and a defendant's incriminating conduct.[FN25 ] On the other hand, a weapons possession conviction has been reversed for lack of corroboration of an accomplice's testimony regarding the operability of the firearm.[FN26 ] The introduction into evidence of the weapon at issue has sometimes been held to be probative evidence of its operability.[FN27 ] Moreover, the failure of the defense to object at trial to the introduction into evidence of the subject firearm has been held to preclude the argument on appeal that people of average intelligence on a jury could not determine beyond a reasonable doubt that the gun was operable by simply handling and looking at it when no evidence had been introduced by a ballistics expert that it could be fired.[FN28 ] Depending on the jurisdiction and the particular weapons offense, inoperability may be an affirmative defense that the defendant must prove.[FN29 ] In other jurisdictions or with regard to certain weapons offenses, it has been held that absent the defendant's introduction of evidence that the subject firearm was inoperable, it is not error for the trial judge to fail to instruct the jury that operability is an essential element.[FN30 ] Similarly, it has been held that a defendant, who at trial had denied having a pistol of any kind with him on the occasion in question, could not complain on appeal that the jury should have been instructed that the pistol carried by him must have been proven to be one capable of being fired and one possessed of all of the component parts of a pistol.[FN31 ] Ideally for defense counsel, the prosecutor will be willing to enter into a stipulation that the gun in question was inoperable, since the presence[FN32 ] or absence[FN33 ] of such a stipulation has been considered significant. Even if a gun is inoperable at the time of trial, the prosecution may be able to establish a likelihood that the inoperability occurre after the weapons offense was committed, such as by a police officer's testimony that the inoperability of a pistol had resulted from its impact with a telephone pole when the defendant threw it out the window of his car.[FN34 ] Conversely, a gun may function better at the time of trial than it did at the time of the weapons offense,[FN35 ] or at least there may be a need for testimony that the weapon at the trial was in the same condition as it had been in when taken from the defendant.[FN36 ]

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Although most courts, in cases throughout this annotation, have spoken of operability in the abstract, occasionally a court has made it clear that it was referring to operability by the particular defendant, thus making relevant evidence of the defendant's knowledge of firearms—especially their assembly and repair.[FN37 ] Also, the absence of evidence that the defendant had any knowledge of firearms,[FN38 ] or was sufficiently skilled to make the necessary repairs,[FN39 ] has been noted as a factor influencing the outcome in some cases. Not found on the defendant were any tools or facilities by which he might have repaired the broken p stressed the court in another case.[FN40 ] One step removed from the defendant's actual knowledge of weapons is his access to such knowledge, and one court has n evidence that directions for the repair of the handgun in question could be found in the manual that was provided with the gun at the time of purchase.[FN41 ] Even the possibility of obtaining replacements for missing and broken gun parts from a manufacturer, as well as the reasonable cost of such replacements, has been established by the testimony of a firearms agent, despite a consulting engineer's inability to obtain those parts.[FN42 ] II. Pistol, Revolver, or Handgun § 3[a] Possession—generally or without license, permit, or registration[FN43 ]—View that operability is required for violation—statute violated [Cumulative Supplement] Under a weapons statute proscribing possession—either generally or without a license or permit or without registration—the courts, in the following cases involving a pistol, revolver, or handgun, apparently took the position that operability, at least in th sense of being readily made operable, was a requirement for violation of the statute and explicitly or implicitly held that operability of the gun in question was established or supportable. A conviction of possession of an unregistered firearm in violation of 26 U.S.C.A. § 5861(d) was not precluded by the fact that the automatic machine pistol at issue was disassembled when found in a trash can on a porch outside the defendant's apartment, held the court, in United States v Theodoropoulos (1989, CA3 Pa) 866 F2d 587, 27 Fed Rules Evid Serv 633 , mand den (US) 103 L Ed 2d 246, 109 S Ct 1179 , reh den (US) 104 L Ed 2d 208, 109 S Ct 1773 and post-conviction proceeding on other grounds (ED Pa) 1989 US Dist LEXIS 6844. Affirming that conviction, the court pointed out that (1) a firearm was defined in 18 U.S.C.A. § 921(a)(3) as any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (2) t machine pistol here easily could have been made operable; and (3) the definition of a machine gun in 26 U.S.C.A. § 5845(b) included any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person. Affirming in pertinent part a conviction of, inter alia, criminal possession of a pistol, the court, in State v Carpenter (1989) 19 Conn App 48, 562 A2d 35 , app den 213 Conn 804, 567 A2d 834 , held that operability of the pistol was an essential element of the crime and that there was ample evidence from which the jury could infer that operability had been proven beyond a reason doubt. With regard to its conclusion that there was a legal requirement of operability, the court pointed to statutory language defining a firearm as a weapon from which a shot may be discharged. As to the sufficiency of the evidence of operability of the pistol and other weapons involved in the case, the court noted that (1) a witness testified that he had fired one of the weapon cemetery; (2) the mother of a purchaser of two of the guns testified that her son had asked her to buy bullets for the guns, which she had refused to do; and (3) the weapons had been entered as full exhibits and made available to the jurors for examination. In State v Schultheis (1971) 113 NJ Super 11, 272 A2d 544 , certif den 58 NJ 390, 277 A2d 882 , the court, apparently accepting the defendant's position that in order to convict for unlawful possession of a weapon, the gun must be capable of bein fired, nevertheless affirmed such a conviction because the testimony of a witness gave rise to a rational inference, "tantamount t legal proof of the fact," that the pistol in question was capable of being fired. This testimony was that although the witness saw only the handle and a part of the metal exposed from the holster worn by the defendant, he was positive, based on his experience with guns, that what he saw was a real gun. Affirming a conviction of unlawful possession of a revolver, the court, in State v Morgan (1972) 121 NJ Super 217, 296 A2d 539 , held that by expert testimony that the defendant's revolver was capable of being fired with only minor adjustment, the state countered the defendant's claim that the revolver was inoperable and therefore not a "firearm" within the governing statute. The

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firing pin of the revolver had been filed down. In order to fire the gun, it would have been necessary only to insert a thin piece o metal or paper between the pin and the cartridge. At the time of the alleged offense, the revolver contained five cartridges ammunition within its chamber. The court adopted the view that a firearm is no less a firearm if it is rendered temporarily inoperable because of a missing and easily replaceable part or by the need for some minor repair or adjustment. In State v Cole (1977) 154 NJ Super 138, 381 A2d 40 , certif den 78 NJ 415, 396 A2d 602 , the court, stating that the inference of operability cannot be made to depend on the recovery of the weapon or its production in court, affirmed a conviction of possession of a pistol without a permit. Although the gun was never recovered or produced in court, a witness testified th defendant was holding a black.32–caliber revolver; that he first became aware that the defendant had a gun when he heard a "c click," turned around, and saw a gun pointed at his head; and that the clicking noise sounded "like you pull a trigger back o revolver." Emphasizing that the issue of operability was never raised and that there was no evidence that might have conflicted with the inference of operability, the court stated that a factual issue as to operability may be raised only where other evidence conflicts with the inference of operability. In People v Ansare (1983, 4th Dept) 96 App Div 2d 96, 468 NYS2d 269 , where a statute defined a firearm as including a pistol or revolver other than an antique but did not allude to operability, the court nevertheless declared it well settled that a pistol or revolver must be operable before there can be a conviction for possession of a firearm as a weapon. Based on unspecified evidence by the state that the handgun in question was operable, the court affirmed a conviction of criminal possession of a weapon in the third degree. The defendant sold the.25–caliber handgun and a loaded bullet clip to an undercover police officer. The defendant testified that he had received the gun and clip from a man who had told him that the gun was an antique and had no firing pin. The defendant further testified that the gun was rusty and that another person had told him that it was "garbage." A conviction of criminal possession of a weapon in the third degree was affirmed, in People v Ramsey (1986, 2d Dept) 124 App Div 2d 835, 508 NYS2d 553 , where the court, adopting the view that a firearm within the governing statute must be found operable, stressed a ballistics expert's testimony that (1) the revolver admittedly possessed by the defendant was operable; (2) when the expert test–fired it twice, discharged each time; and (3) although the revolver had a cylinder that did not lock into perfect alignment with the hammer an barrel, it could easily be made to align by using the free hand to move the cylinder slightly. The state proved beyond a reasonable doubt that the defendant was in possession of an operable.38–caliber revolver, held the court, in People v Francis (1987, 2d Dept) 126 App Div 2d 740, 511 NYS2d 136 , where there was expert testimony that although the weapon's revolving mechanism was not functioning properly, the weapon could be aligned manually and discharged and that it had been test–fired. A conviction of criminal possession of a weapon in the second degree was accordingly affirmed. A defense motion to inspect the grand jury minutes on the ground that the broken revolver allegedly possessed by the defendant was not a firearm within the meaning of the governing statute was denied, in People v Tardibuono (1940) 174 Misc 305, 20 NYS2d 633 , the court stating that whether an exhibit or instrument such as the present one comes within the prohibition of the statute, either as a firearm or as a dangerous weapon, is for the arbiters of fact, unless the court finds the instrument to be beyon repair so that under no circumstances can it be restored to its original condition as a gun and used as such. The revolver had a broken spring that connected the revolving cartridge chamber with the trigger. When the trigger was pulled, a small inside pin, par of the operating mechanism, was propelled by means of the spring, thereby causing the cartridge carriage to revolve. Howeve despite the broken spring, the carriage could be turned by hand so as to make possible the discharging of any cartridge so pla opposite the hammer of the gun. Noting that the police, in order to test the instrument, had loaded it with powder and ball and ha fired a bullet from it, the court stressed that the broken spring did not totally impair the use of the gun or the hammer's being operated by manual manipulation. There is nothing about the gun otherwise, said the court, that prevents its operation and use firearm or as a dangerous weapon. A defense motion to dismiss an indictment charging criminal possession of a weapon in the third degree was denied, in People v Mott (1982) 112 Misc 2d 833, 447 NYS2d 632 , where a loaded replica of a 19th–century antique muzzle–loading pistol was found in the defendant's coat pocket, the barr contained one ball of ammunition with a rag obstructing its discharge, and in the defendant's sock were found a bag of bla gunpowder and additional balls of ammunition. A person is guilty of criminal possession of a weapon in the third degree wh possesses any loaded firearm, said the court, and in order to attain the threshold level of criminality, the weapon must be operable The term "loaded firearm" was statutorily defined as any firearm loaded with ammunition or any firearm possessed by one who, a the same time, possesses a quantity of ammunition that may be used to discharge the firearm. A police ballistics test indicated th both the gun and the ammunition were operable. In order to discharge the weapon, however, first the rag and ball had to be removed and a quantity of the black gunpowder introduced into the chamber; then the ball of ammunition had to be front load through the barrel and the percussion cap put in place. The court stated that (1) a gun that requires a laborious procedure to be fired is as much a loaded weapon as one that is loaded in an instant, provided that both the gun and the ammunition that comprise th

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deadly whole are on the person of the defendant and are operable; (2) since the governing statute did not set forth the manner i which the ammunition and the weapon had to be possessed, it was sufficient that they were simultaneously possessed by th defendant; and (3) it was neither inconsistent nor inappropriate for society to view the possession of a loaded antique firearm potential deadly threat, since such a weapon could be as lethal as a traditional weapon in the hands of one bent on criminal mischief. In Rosenfeld v Dunham (1987, CA2 NY) 820 F2d 52 (applying New York law) , cert den 484 US 968, 98 L. Ed. 2d 402, 108 S Ct 463 and (disagreed with on other grounds by United States v Mentz (CA6 Ohio) 840 F2d 315, 24 Fed Rules Evid Serv 1154 ), the court, although denying habeas corpus relief because the error in question was harmless, held that the trial judge should instructed the jury that operability of the weapon and liveness of the ammunition are elements of the crime of weapon possession in the second degree, of which the petitioner had been convicted. In concluding that the error was harmless, the court pointed out tha (1) there was eyewitness testimony that the petitioner had fired a loaded revolver at an approaching bystander, who stated that h heard the shot and felt something "whiz" by his ear; (2) the arresting officer testified that he had examined the weapon used petitioner, which was a nine–round.22–caliber revolver with eight live rounds and one casing with a firing mark on the casing under the hammer and that he had found the revolver to be in working order; and (3) although specific instructions on operability and liveness were absent, the language of the instruction actually given on the definition of a loaded firearm—"which may be used to discharge such firearm"—indicated to the jury that both the weapon and the ammunition must be found functional. Although reversing on other grounds a conviction of unlawful possession of a weapon, the court, in State v Turechek (1985) 74 Or App 228, 702 P2d 1131 , rejected a defense argument that a police officer's failure to test–fire the revolver in question had prevented the state from proving that the revolver was, in the language of the governing statute, "readily capable of use as a weapon" and therefore had prevented the state from proving a material element of the offense. The court pointed out that the officer had testified that when he tested the revolver at the police station, it "cycled through," the firing pin was connected, and all necessary to fire the revolver worked. CUMULATIVE SUPPLEMENT Cases: Under Maryland law, operability is required for criminal possession of handgun. West's Ann.Md.Code, Criminal Law, § 4–201(c)(1) . U.S. v. Robson, 391 F. Supp. 2d 383 (D. Md. 2005) . To sustain conviction for unlawful possession of firearm there must be some evidence indicating that firearm is functional. M.G.L.A. c. 269, § 10(a) . Com. v. Mendes, 44 Mass. App. Ct. 903, 687 N.E.2d 275 (1997) . There was insufficient evidence that defendant possessed an operable weapon to support conviction for criminal possession o weapon in the fourth degree; the alleged gun possessed by the defendant was never recovered, and the People otherwise presented no evidence of operability, e.g., that the shell casings recovered from the scene fired live rounds, or that there were bullets, fragments, or evidence of the same, found at the scene. McKinney's Penal Law § 265.01 (1). People v. Lewis, 39 A.D.3d 565, 834 N.Y.S.2d 227 (2d Dep't 2007) . Evidence was sufficient to support finding that defendant possessed a firearm within meaning of statute proscribing simult possession of a controlled substance and a firearm; while defendant's weapon was a rare Czechoslovakian handgun manufactu during the World War I era, arresting officer testified that he used a nine millimeter blank to test the gun. West's V.C.A. § 18.2–308.4 . McDaniel v. Com., 264 Va. 429, 574 S.E.2d 234 (2002) . [Top of Section] [END OF SUPPLEMENT] § 3[b] Possession—generally or without license, permit, or registration[FN* ]—Statute not violated [Cumulative Supplement] Under a weapons statute proscribing possession—either generally or without a license or permit or without registration—the courts, in the following cases involving a pistol, revolver, or handgun, apparently took the position that operability was a requirement for violation of the statute and explicitly or implicitly held that operability of the gun in question was not established.[FN44 ]NY

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Re Alex A. (1993, 1st Dept) 189 App Div 2d 596, 592 NYS2d 305 Re Alex B. (1993, 2d Dept) 189 App Div 2d 813, 592 NYS2d 435 In re Francisco C., 238 A.D.2d 224, 657 N.Y.S.2d 16 (1st Dep't 1997) The reversal of a conviction of criminal possession of a weapon in the fourth degree was held mandated, in People v Actie (1984, 2d Dept) 99 App Div 2d 815, 472 NYS2d 147 , because the state had presented no evidence that the.22–caliber gun (apparently a handgun) found in the defendant's gl compartment was operable. Commenting only that the state had thereby failed to prove that the defendant was in possession of a "firearm" with meaning of the governing statute, the court relied on People v De Witt (1955) 285 App Div 1157, 140 NYS2d 190 , (§ 7[b] ), and People v Grillo (1961, 2d Dept) 15 App Div 2d 502, 222 NYS2d 630 , (§ 4), affd 11 NY2d 841, 227 NYS2d 668, 182 NE2d 278 . See also People v Burdash (1984, 3d Dept) 102 App Div 2d 948, 478 NYS2d 89 , involving the offense of criminal possession of stolen property, wherein the court remarked that the defendant's prior conviction of criminal possession of a weapon in the degree had been reversed for lack of corroboration of an accomplice's testimony regarding the operability of the firearm. To "firearm," said the court, the handgun must have been operable, and corroboration by one other than an accomplice is required. The defendant, in People v Simons (1924) 124 Misc 28, 207 NYS 56 , was acquitted of possessing a pistol, revolver, or other concealable firearm without a license, the court holding that "the dilapidated gun in evidence" (apparently a pistol) was not a firearm. When a police officer examined the gun at the station house, he found that it was not in good working order. At trial t officer was unable to say whether it could be fired. However, an examination of the gun satisfied the court that it could not be fired at all in its present condition by reason of some mechanical defect, which the court inferred was permanent. The court declared that if the gun is imperfect and cannot be discharged at all, whether by hand or otherwise, having only the appearance of a pistol, it cannot be held to be a revolver or pistol within the meaning of the pertinent statute. See People v Johnson (1964) 42 Misc 2d 164, 247 NYS2d 692 , involving a defense motion to suppress evidence as illegally seized by the police, wherein the court stated that no charge of possession of a firearm could be successfully maintained against the defendant based merely on his possession of the frame of a revolver that had no cylinder when a police officer saw the frame fal from the defendant's pocket to the ground. What the officer saw was not a firearm, reasoned the court, since it could not be used in its then condition to do any shooting. Although adjudging the respondent to be a juvenile delinquent on other grounds, the court, in Re B. (1971) 66 Misc 2d 279, 320 NYS2d 813 , held that his possession of a homemade.22–caliber pistol that was incapable of discharging a bullet did not violate certain provisions of a weapons statute. Stating that a pistol incapable of being fired is not a pistol, revolver, or other firearm within t statute, the court added that it might still qualify as a dangerous weapon if with reasonable preparation it could be made effective and fit for use. The court also expressed doubt that the gun was an imitation pistol within the meaning of another statutory provision. The court reasoned that an instrument that was constructed to fire bullets but was a failure and is inoperable as a firearm is not ipso facto an imitation pistol, since such an instrument might not resemble the genuine article at all; even though with onl slight repairs it might be made to fire, it would not be likely to produce in the minds of others the belief that it was a firearm determines whether any instrument is an imitation pistol for purposes of the statute, said the court, is the appearance of the instrument and not the function for which it was constructed. Dismissing misdemeanor charges of criminal possession of a firearm, the court, in People v Harvin (1984) 126 Misc 2d 775, 483 NYS2d 913 (disagreed with on other grounds by multiple cases as stated in People v Escalera, 1989 NY App Div LEXIS 6571, withdraw reported at (NY City Crim Ct) 143 Misc 2d 779, 541 NYS2d 707 ), held the information insufficient for failure to allege that the.32–caliber pistol seized from the defendant was operable, even though two days after arraignment the state purportedly obtained a ballistics report stating that the pistol was operable. Declaring well settled that operability is an essential element of the crime of possession of a firearm, the court added that operability commonly and conveniently established through the introduction of a ballistics report, although any element of a crime ma established by circumstantial evidence. In order to be prima facie sufficient on its face, said the court, an information must allege in nonhearsay form, by facts of an evidentiary nature, the operability of the firearm, which the instant information failed to do. A conviction of unlawfully possessing a firearm was reversed, in People v Boitano (1940, Co Ct) 18 NYS2d 644 , the court holding that no violation of the governing statute had occurred by the possession of a permanently defective remnant of what ha once been an automatic revolver. The cartridge clip was missing, the trigger did not work, and the carriage was so jammed that

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could not be moved. Both of the police officers called by the state testified that the exhibit could not be used as a firearm, and th court concluded that it was totally unfit for use as a revolver. Reversing a conviction on two counts of felonious possession of a firearm, the court, in Hunnicutt v State (1988, Okla Crim) 755 P2d 105 , held that the state had failed to prove that the two pistols in question were capable of discharging a lethal projectile, an essential element of the crime as established by Nelson v State (1984, Okla Crim) 687 P2d 744 , (§ 12[a] ). Here, said the court, the only evidence offered by the state to prove this element was that the defendant inspected the weapons (shown to him b undercover officer), said that he could get a certain price for them, and reportedly remarked that he would like to keep one of t pistols for himself. CUMULATIVE SUPPLEMENT Cases: Complaint charging the crime of possession of an air pistol or rifle under the New York City Administrative Code is not fac sufficient unless it alleges, in the complaint or through a supporting deposition or ballistics report, facts that tend to prove that when the pistol or rifle was seized it had an operable spring or air propulsion system. People v. Blackwell, 176 Misc. 2d 896, 675 N.Y.S.2d 486 (City Crim. Ct. 1998) . Defendant was improperly convicted of criminal possession of weapon in second–degree on basis of firing several shots from handgun at landlord during argument, and leveling gun at officer and pulling trigger, after which cartridges did not discharge, where prosecution did not prove that firearm and ammunition were operable as required for second–degree offense of possession of "loaded firearm"; therefore, defendant's conviction was modified to criminal possession of weapon in fourth degree, which required possession of "any firearm." People v Aguilar (1994, App Div, 2d Dept) 609 NYS2d 76 , app den 83 NY2d 908 . [Top of Section] [END OF SUPPLEMENT] § 3[c] Possession—generally or without license, permit, or registration[FN* ]—View that operability is not required for violation [Cumulative Supplement] Operability was held not a requirement for violation of a statute prohibiting either the possession of a firearm generally or possession of an unregistered pistol in the following cases involving a pistol or handgun. In Curtice v United States (1985, Dist Col App) 488 A2d 917 , the court, although reversing a conviction of carrying a pistol without a license because the government had failed to prove that the pistol was operable, summarily affirmed a conviction possessing an unregistered pistol. The court merely stated that the statute requiring registration of certain firearms did not registration to firearms that are operable. A determination of juvenile delinquency based on the offense of unlawful possession of a firearm was affirmed, in People v Hughes (1970, 1st Dist) 123 Ill App 2d 115, 260 NE2d 34 , despite the contention that the trial judge had erred in not requiring the state to prove that the instrument in question was operable. The instrument was a "zip gun" consisting of a metal chamber, a firing pin designed to project a bullet, a piece of tape, and a rubber band. The court held it unnecessary for the state to prove that instrument was in operable condition, it being sufficient to show that, in the language of a statute defining a firearm, it was designed to expel a projectile or projectiles by the action of an explosion, expansion of gas, or escape of gas. CUMULATIVE SUPPLEMENT Cases: Gun possessed by defendant, which lacked a firing pin assembly and magazine, was a "firearm" within the meaning felon possession of a firearm statute. 18 U.S.C.A. § 922(g)(1) . U.S. v. Padilla, 393 F.3d 256 (1st Cir. 2004) . Inoperative pistol, taken from drug suspect, was "firearm," for purposes of charging suspect with weapons possession in connection with drug activities; statute defined "firearm" to include weapon which could be converted to expel projectile by action of explosive. 18 U.S.C.A. § 921(a)(3) . U.S. v. Morales, 280 F. Supp. 2d 262 (S.D. N.Y. 2003) .

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Firearm need not be operable to satisfy the definition of firearm for purposes of use of a firearm in relation to a crime of violence. 18 U.S.C.A. § 924(c) . U.S. v. Bandy, 239 F.3d 802 (6th Cir. 2001) . Evidence supported defendant's conviction of being felon in possession of firearm despite defendant's claim that revolver wa operable where police firearms expert testified that revolver was operable and functioned as designed; further, even if firearm was not operable, applicable federal statute did not require that it be operable. U.S. v. Maddix, 96 F.3d 311, 45 Fed. R. Evid. Serv. (LCP) 772 (8th Cir. 1996) . Juvenile girls were properly found guilty of possession of handgun, even though handgun was temporarily inoperable at time it was discovered on school property, since statutory language, "designed or constructed to be fired with one hand," could be synonymously and interchangeably with statutory phrase, "capable of firing," to define handgun. S.T. v State (1994) 318 Ark 499, 885 SW2d 885 . Operability of weapon is not an essential element of criminal possession of pistol or revolver. C.G.S.A. § 53a–217c (1998) . State v. Banks, 59 Conn. App. 112, 755 A.2d 951 (2000) . Semiautomatic pistol that needed particular magazine to be inserted to connect pistol's internal firing mechanism was "re convertible" or "readily operable" as a handgun, and therefore constituted a "handgun," for purposes of unlawful possession handgun, even if city police department ballistics experts had to test the gun three times because they had difficulty finding magazine that would make the pistol operable; magazine was an insertable and removable part that defendant would have expected to take out of pistol from time to time, and it could be inferred that defendant was familiar with proper magazine for his weapon and therefore could obtain it with less difficulty than could police ballistics experts. Code 1957, Art. 27, §§ 36B(b), 36F(b). Powell v. State, 140 Md. App. 479, 780 A.2d 1219 (2001) . A handgun need not be currently operable to qualify as a "firearm" for purposes of the felon in possession statute. M.C.L.A. § 750.224f . People v. Brown, 249 Mich. App. 382, 642 N.W.2d 382 (2002) . Defendant was properly convicted of possession of assault firearms, Uzi, AR 15 rifle, and MAC 10 pistol, even though weapons were inoperable, where defendant failed to file certificate of inoperability within 1–year grace period as required by statute. State v Elrose (1994, App Div) 277 NJ Super 548, 649 A2d 1351 . Evidence was sufficient to support conviction for third–degree criminal possession of a weapon even though People failed to prove that the handgun was loaded, inasmuch statute did not require such proof. McKinney's Penal Law § 265.02 (1). People v. Zakrzewski, 777 N.Y.S.2d 207 (App. Div. 3d Dep't 2004) . Inoperability of firearm is not affirmative defense to charge of possession of firearm by felon, as "operability" is not essential element of "handgun or other firearm"; focus of words "purchase, own, possess, or have in custody, care, or control" is on felo access to firearm and not firearm's operability at any given point in time, and intuitively logical objective of statute is to prevent show of force by felons, either real or apparent. G.S. § 14–415.1 . State v. Jackson, 546 S.E.2d 570 (N.C. 2001) . Operability of firearm was not essential element to sustain charge for possession of firearm by felon, nor was it affirmative defense. West's N.C.G.S.A. § 14–415.1 . State v. McCree, 584 S.E.2d 861 (N.C. Ct. App. 2003) . Federal statute prohibiting a convicted felon from possessing a firearm does not require proof that the firearm is operable. 18 U.S.C.A. § 922(g) . State v. Crudup, 842 A.2d 1069 (R.I. 2004) . Handgun, by definition, is a firearm, even if it is not operable. V.T.C.A., Penal Code § 46.01 (3). Thomas v. State, 36 S.W.3d 709 (Tex. App. Houston 1st Dist. 2001) . To sustain a conviction for felon in possession of a firearm, Commonwealth is not required to prove that the firearm was opera West's V.C.A. § 18.2–308.2 . Williams v. Com., 49 Va. App. 439, 642 S.E.2d 295 (2007) . Defendant was properly convicted of possession of firearm while in possession of cocaine in violation of statute where, in addition to cocaine found in his apartment, police discovered.32–calibre semiautomatic pistol in his bedroom, though it was missing clip when found and clip was not found in apartment, and despite defendant's claim that pistol was not "firearm," as contemplated statute, because absence of clip rendered it inoperable at time it was seized. Clip can be inserted "on a moment's notice" so as to make weapon operable, and defendant's contention that weapon had to be operable when discovered to fall within purview of statute was without merit. Timmons v Commonwealth (1992, Va App) 421 SE2d 894 . [Top of Section] [END OF SUPPLEMENT] § 4. With altered serial number

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In the following broken pistol case, the court adopted the view that operability was a requirement for violation of a statute prohibiting the possession of a pistol with an altered serial number and held that operability of the pistol in question was n established. Affirming the dismissal of an indictment charging the defendant with knowingly having in his possession a pistol from manufacturer's serial number or part thereof had been removed, defaced, or altered, the court, in People v Grillo (1961, 2d Dept) 15 App Div 2d 502, 222 NYS2d 630 , affd 11 NY2d 841, 227 NYS2d 668, 182 NE2d 278 , held it determinative that the instrument was incapable of being fired because its firing pin was broken. The court referred to "the settled rule" that such a defective instrument is not a pistol under the particular statute in question. § 5. With intent to use unlawfully In the following cases involving a pistol or other handgun, the courts held that operability was not a requirement for violation o statute prohibiting the possession of an object designed or intended to be used as a dangerous weapon or prohibiting the possession of a firearm with intent to use it unlawfully against the person of another. Affirming a conviction of possession of an object that is designed or intended to be used as a dangerous weapon in violation of 18 U.S.C.A. § 1791 , the court, in United States v Gometz (1989, CA7 Ill) 879 F2d 256, 28 Fed Rules Evid Serv 197 , reh den, en banc (CA7) 1989 US App LEXIS 14149 and cert den (US) 107 L Ed 2d 768, 110 S Ct 752 , held that the defendant's defective homemade zip gun was such a prohibited weapon and that functionality was not a prerequisite for violation of the statute. The court emphasized the express language of the statute, "intended to be used as a weapon." To successfully prosecute a defendant under this provision, said the court, the government need only demonstrate that the defendant intended to employ the object as a weapon the capacity of the object to effect injury is irrelevant. Affirming a conviction of possession of a firearm with a purpose to use it unlawfully against the person of another, the court, in State v Harmon (1985) 203 NJ Super 216, 496 A2d 707 , certif gr 102 NJ 361, 508 A2d 230 and revd on other grounds 104 NJ 189, 516 A2d 1047 , held that the statutory definition of a "firearm" did not require proof of present operability. The weapon in question was air–powered pistol that was not a toy. The defendant contended that while rifles, shotguns, and machine guns were statutorily defined in terms of their design, less traditional weapons such as air guns and spring guns were described in terms of their operability. The statutory definition of a "firearm" included any firearm in the nature of an air gun, spring gun or pistol, or oth weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than 3/8 of an inch in diameter sufficient force to injure a person. The court, stating that, under the statute, the weapon must have been originally design manufactured to propel a bullet or missile of the dimensions set forth with sufficient force to injure a person, perceived no legislative intent that the weapon actually be operable at the time of the offense. Such a grudging construction of the statute, said the court, would place an insurmountable burden on the prosecution in cases in which the accused disposed of the weapon, and such a construction would not comport with the clear legislative policy to restrict the possession and use of such articles. T recognized that conceivably a particular device, although having initially possessed the characteristics of a firearm, may have lo them through mutilation, destruction, or disassembly. However, the court was convinced that this had not occurred here, even though the pumping mechanism had caught on the defendant's pants and separated from the rest of the air pistol when the defendant had attempted to retrieve it from his pocket. The court noted that the defendant had put the gun back together and that was fully assembled when the barrel was pressed against the victim's head. § 6. Of "dangerous" or "deadly" weapon [Cumulative Supplement] Operability, at least in the sense of being readily made operable, was held to be a requirement, which was not met, for violation of a statute prohibiting possession of a dangerous weapon in the following cases involving a pistol, revolver, or handgun.[FN45 ] But see People v De Witt (1955) 285 App Div 1157, 140 NYS2d 190 , involving two pistols, one of which was incapable of being fired, wherein the court recognized that under certain (unspecified) circumstances that had not been established the defec pistol could be a "dangerous weapon" under a certain subdivision of a penal statute, although it was not a "pistol, revolver or firearm" within the meaning of another subdivision of the statute. A conviction of being a second–felony offender in possession of a dangerous weapon was reversed because, inter alia, the trial judge, in his instructions to the jury, had erroneously reviewe testimony concerning the defective pistol as if it referred to the working pistol. Dismissing a count of possession of a dangerous weapon as a felony, the court, in People v Fwilo (1975, 1st Dept) 47 App Div

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727, 365 NYS2d 194 2d , held that since the evidence presented an issue with respect to the operability of the gun in question, the trial judge should ha granted defense counsel's request for an instruction that the jury, in order to convict, had to find beyond a reasonable doubt that pistol was in fact operable. The court pointed to statutory language that a gun may be considered a dangerous instrument if, under the circumstances in which it is used, attempted to be used, or threatened to be used, it is readily capable of causing death or other serious physical injury. Similarly, see People v Simons (1924) 124 Misc 28, 207 NYS 56 , (§ 3[b] ), wherein the court, although holding that "the dilapidated gun in evidence" (apparently a pistol) was not a firearm because it could not be fired at all in its present condition b reason of some mechanical defect, recognized that such a gun could still be used like any blunt instrument for offensive or defensive purposes and therefore could be a "dangerous or deadly instrument or weapon" the possession of which would viol another statutory provision if it was intended to be so used. And see People v Tardibuono (1940) 174 Misc 305, 20 NYS2d 633 , (§ 3[a] ), involving a defense motion to inspect the grand jury minutes on the ground that the broken revolver allegedly possessed by the defendant was not a firearm within the meaning of the governing statute, wherein the court stated that whether an exhibit or instrument such as the present one comes within prohibition of the statute, either as a firearm or as a dangerous weapon, is for the arbiters of fact, unless the court finds the instrument to be beyond repair so that under no circumstances can it be restored to its original condition as a gun and used as such. Dismissing a charge of possession of a dangerous weapon, the court, in People ex rel. Di Buono v Haskins (1948) 190 Misc 888, 76 NYS2d 636 , held that the.25–caliber pistol found under the mattress of the defendant's bed was not a dangerous weapon within the meaning o the governing statute because the defendant could not have made the gun effective with reasonable preparation. Expressing the view that a weapon is dangerous within the meaning of the statute when it can be fired or when, with reasonable preparation, it can be made effective and fit for the use for which it was manufactured, the court added that what constitutes reasonable prepara depends on the time required, the changes that have to be made in the weapon, the parts that have to be inserted, and all oth attendant factors. A police officer, a well known and highly capable authority on firearms, testified that it was impossible to fire the weapon and that it would take an expert at least an hour to place the gun in condition for use. The court also noted that there was no evidence that the defendant had any knowledge of firearms. Although adjudging the respondent to be a juvenile delinquent on other grounds, the court, in Re B. (1971) 66 Misc 2d 279, 320 NYS2d 813 , held that his possession of a homemade.22–caliber pistol that was incapable of discharging a bullet did not violate certain provisions of a weapons statute. Stating that a pistol incapable of being fired is not a pistol, revolver, or other firearm within t statute, the court added that it might still qualify as a dangerous weapon if with reasonable preparation it could be made effective and fit for use. What constitutes reasonable preparation, explained the court, depends on the time required, the changes that have to be made in the weapon, the parts that have to be inserted, and all other attendant factors. Since there was no evidence that respondent was capable of repairing the gun so as to make it fire, the court concluded that it had not been proven that the gun could have been made operable with reasonable effort. Finally, see Sims v State (1988, Okla Crim) 762 P2d 270 , (§ 7[c] ), wherein the pertinent statute, in addition to referring to "any pistol," which was the weapon involved, contained the language "or any other dangerous or deadly firearm," and the court held that whether a pistol was capable of firing was not an element that had to be proven to sustain a conviction under the statute. CUMULATIVE SUPPLEMENT Cases: Where defendant has been charged with violating provision of Dangerous Weapons' Control Law, it is enough that prosecuti produce evidence of gun designed to shoot and which gives appearance of shooting capability. West's Ann. Cal. Penal Code § 12000 et seq. People v. Hamilton, 61 Cal. App. 4th 149, 71 Cal. Rptr. 2d 359 (4th Dist. 1998) , as modified on denial of reh'g, (Feb. 24, 1998) and review denied, (Apr. 15, 1998). [Top of Section] [END OF SUPPLEMENT]

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§ 7[a] By previously convicted person—View that operability is required for violation—statute violated [Cumulative Supplement] Under a weapons statute referring to the offense of possession by a previously convicted person, the courts, in the following involving a pistol, revolver, or handgun, expressly or impliedly held that operability was a requirement for violation of the statute and that this requirement had been met.[FN46 ] For California and Georgia cases, see § 7[d] , 7[e] . Affirming a conviction of possession of a firearm by a felon, the court, in State v Smith (1977, Me) 379 A2d 722 (superseded v Nile (Me) 557 A2d 950 by statute as stated in State , §§ 24, 26), held that (1) the state had to prove the operability of the weapon in order to establish a violation of the governing statute; and (2) the evidence was sufficient to establish the element of operability. In reaching its first conclusion, the court applicable to the offense in question another statutory provision defining a firearm in part as any weapon, whether loaded o unloaded, that will expel a projectile by the action of an explosive. The requirement of operability, said the court, reflects a legislative purpose to proscribe the possession of only firearms actually capable of producing the feared harm. On the second point, the court stressed that the revolver in question, apparently in good condition and showing no sign of disrepair or decrepitude, ha been in evidence as an exhibit with the jury during its deliberations and that a police officer had testified that the revolver had a firing pin, both when seized and at the time of a suppression hearing. The court added that there was nothing in the record to suggest that the revolver did not still have a firing pin when it was before the jury. Neither party, said the court, had produce evidence remotely suggesting that the revolver was inoperable. Once the jury was satisfied beyond a reasonable doubt that the offending object was actually a firearm, it could equally conclude, in the absence of any evidence suggesting inoperability, that the weapon was operable, held the court, in State v Millett (1978, Me) 392 A2d 521 , affirming a conviction of unlawful possession of a firearm by a felon. The state's principal witness, who professed to be experienced with firearms, testified that he observed the brown handle and hammer of a handgun sticking out of the defenda clothing and that the instrument could have been a.357–magnum pistol. The court stated that (1) mere allegation of inoperability i not sufficient to bar a conviction of unlawful possession of a firearm by a felon; (2) any real pistol or revolver would continue qualify as a "firearm" until some evidence is presented tending to establish the inoperability of the gun involved; (3) the application of the inference of operability cannot be made to depend on the recovery of the weapon or its production in court; (4) proof convicted felon was in possession of a real firearm constitutes a prima facie violation of the governing statute and may sus conviction; (5) the defense of inoperability will enter the case as an issue only if and when substantial evidence bearing on that issue is introduced, from whatever source such evidence may come; and (6) it is only when evidence is presented that will gener such an issue that the fact finder must determine whether, in light of the evidence of inoperability, the state has sustained its burden of proof beyond a reasonable doubt of the defendant's guilt of possessing a firearm that was operable at the time contrary to th statute. Affirming a conviction of unlawful possession of a firearm by a felon, the court, in State v Lee (1976) 195 Neb 348, 237 NW2d 880 , rejected the defendant's contention that the state had failed to prove that his.22–caliber revolver was a firearm because it had failed to prove that the revolver was operable. The revolver was admitted into evidence. At various points in the testimony it was referred to as a "gun," "weapon," "revolver," and "firearm." It was examined and measured by a witness who had extensiv experience and training with firearms. Although no one affirmatively testified that the gun was in operating condition, the co stressed that no witness had even intimated that the gun was not operable. The court declared that in a prosecution for this o evidence of possession of a revolver or gun of prohibited description, which is in apparently good condition and has th characteristics and appearance commonly understood to be those of the firearm it purports to be, is prima facie evidence sufficient to go to the jury. Affirming a conviction of possession of a firearm by an ex–felon, the court, in Rusling v State (1980) 96 Nev 778, 617 P2d 1302 , held that the trial judge had not erred in failing to instruct the jury that the operability of the handgun in question was an essential element of the crime. Concluding that it was within the judgment of the jury to decide that the gun, an automatic pistol, was a firearm within the meaning of the governing statute, the court pointed out that (1) the defendant had offered no evidence indicatin that the handgun was inoperable; (2) two police officers had testified that the gun appeared operable and that it contained ammunition; and (3) the gun, as well as its clip and ammunition, had been admitted into evidence. In People v De Bernardo (1951) 199 Misc 563, 106 NYS2d 515 , mod on other grounds 282 App Div 920, 125 NYS2d 641 ,

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the court, in a coram nobis proceeding, denied a motion to vacate a conviction of having a revolver after a previous conviction crime, where one of the defense contentions was that the revolver in question was unfit to be used as a firearm by reason of a defect in its mechanism. Although recognizing that a mechanically defective pistol or revolver, incapable of ejecting bullets, cannot be made the basis of an unlawful possession of a firearm, the court held that the mere assertion by the defendant that the revolve question was not usable as such, without the submission of any corroborative proof to sustain the averment, failed to fulfill the burden imposed on him by law. A state prisoner's contention that he was entitled to habeas corpus relief from his conviction of having a weapon while unde disability (due to prior convictions) because the prosecution had not produced "hard evidence" (test results, a firing demonstration, or the like) indicating that the weapons at issue, including a.357–magnum pistol, were operable was rejected, in Booker v Engle (1981, SD Ohio) 517 F Supp 558 (applying Ohio law) , the court holding that the prosecution was not required to produce that kind of evidence in order to obtain a conviction. Relying on State v Adkins (1973, Columbiana Co) 40 Ohio App 2d 473, 69 Ohio Ops 2d 416, 320 NE2d 308 , (§ 28[a] ), app dismd, the court held that the introduction into evidence of the weapons at issue was, in itself, probative evidence of their operability from which the jury could make its own determination regarding satisfaction of the statutory requirement that the petitioner have "firearm," which term was statutorily defined as a weapon capable of expelling projectiles. The court noted that the jury, which had been instructed according to the statutory language, apparently had found the weapons to be firearms from examining them. Where a.32–caliber automatic pistol, at the time it was seized from the defendant, was fully loaded and to all outward appearance was free of any defect that would make it inoperable, the court, in State v Cartwright (1966) 246 Or 120, 418 P2d 822 , cert den 386 US 937, 17 L Ed 2d 810, 87 S Ct 961 , affirmed the defendant's conviction of being an ex–convict in possession of a pistol, despite his wife's testimony that the gun "didn't work, or something was wrong with it." The court, noting that the wife had no familiarity with firearms, questioned whether her evidence was sufficient to support the claim that the pistol could not be fired. However, assuming its sufficiency, the cou declared that it would not have justified a directed verdict for the defendant. The court adopted the view that if the weapon was i such defective condition that it could not be fired, that was an affirmative defense that the defendant had to prove. The burden of the state to prove that the gun was a pistol within the meaning of the applicable statute was discharged when it was introduc evidence, said the court, and if the wife's testimony constituted countervailing evidence, the question would become one for the jury. Although the trial judge had not instructed specifically on that question, the court stated that the judge had not been requested to do so and that the record was not such as to have impelled him to so instruct in the absence of a request. Relying on State v Cartwright (1966) 246 Or 120, 418 P2d 822 (this subsection), cert den 386 US 937, 17 L. Ed. 2d 810, 87 S Ct 961 , the court, in State v Thomas (1966) 244 Or 377, 418 P2d 837 , held that a pistol in apparently good condition is presumptively operable. Accordingly, the court affirmed a conviction of being an ex–convict in possession of a concealable firearm, a revolver.[FN47 ] Where no evidence was introduced showing the revolver in question to have been inoperable, and there was evidence that th revolver was loaded with cartridges at the time of the defendant's arrest, the court, in Benson v State (1982, Wyo) 640 P2d 83 , cert US 1006, 73 L Ed 2d 1301, 102 S Ct 2297 den 456 , affirming a conviction of being a felon in possession of a firearm, held that the trial judge had not erred in rejecting an inst requiring the jury to find specifically that the firearm was operable in order to convict the defendant. Although the governing statute was framed merely in terms of possession of any firearm and made no mention of an operability requirement, the court noted that in states with similar statutes it had been held that absent the defendant's introduction of some evidence that the firearm was inoperable, it is not error to fail to instruct the jury that operability is an essential element. CUMULATIVE SUPPLEMENT Cases: Evidence was sufficient for jury to find that the pistol found, though jammed, was operable, for purposes of statute governin criminal possession of a firearm, even if contrary inferences existed that could have led jury to believe that weapon was inoperable, given that jam in weapon was merely temporary and could be easily fixed, where officer testified that it was possible that secon bullet could have entered chamber underneath jammed bullet. C.G.S.A. § 53a–217 (Repealed) . State v. Williams, 59 Conn. App. 771, 758 A.2d 400 (2000) .

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[Top of Section] [END OF SUPPLEMENT] § 7[b] By previously convicted person—Statute not violated Operability was held required and not established in the following case involving a defective pistol and a statute prohibitin possession of a firearm by a person previously convicted of a crime of violence. For California cases, see § 7[d] . See also People v De Witt (1955) 285 App Div 1157, 140 NYS2d 190 , involving two pistols, one of which was incapable of being fired, wherein the court declared that the defective pistol was not a "pistol, revolver or other firearm" within the meaning of a certain subdivision of a penal statute, although under certain (unspecified) circumstances that had not been established it could be a "dangerous weapon" under another subdivision of the statute. A conviction of being a second–felony offender in possession dangerous weapon was reversed because, inter alia, the trial judge, in his instructions to the jury, had erroneously reviewed testimony concerning the defective pistol as if it referred to the working pistol. In Commonwealth v Layton (1973) 452 Pa 495, 307 A2d 843 ,[FN48 ] where it was stipulated that the pistol in question could not have been fired at the time of the defendant's arrest, and where there was no evidence that the defendant had under his control the means to convert the object into an operable firearm, the court reversed a conviction under a statute providing that no person who has been convicted of a crime of violence shall own a firearm or have one in his possession or under his control. The co reasoned that since the statute applied only to persons previously convicted of a crime of violence, the legislature must have intended to prevent further violence but obviously had also intended to cover only objects that could cause violence by firing a shot. A reasonable fact finder may infer operability from an object that looks like, feels like, sounds like, or is like a firearm, said the court, and such an inference would be reasonable without direct proof of operability; however, the inference of operability cannot reasonably be made where all parties agree that the object was not operable. In light of the statutory language "or und control," the court recognized that an operable firearm might be said to be under the control of an accused even though malfunctioning or disassembled, if the accused had under his control the means to convert the object into an operable firear examples, the court explained that a reasonable fact finder might conclude that an operable firearm was under the control of a accused even though a damaged part was readily repairable or the stock, barrel, trigger housing group, or firing mechanism were in different rooms in the same apartment. If it can reasonably be concluded that the accused owned, possessed, or controlled an operable firearm, said the court, there is a risk of violence by the firing of a shot, which was the result sought to be avoided b enacting the statute. § 7[c] By previously convicted person—View that operability is not required for violation [Cumulative Supplement] Operability was held or recognized not to be a requirement for violation of a weapons statute referring to possession by a previously convicted person in the following cases involving a pistol, revolver, or handgun.La State v Hill (1990, La App 5th Cir) 562 So 2d 12 , cert den (La) 567 So 2d 99 Wis State v Rardon (1994, App) 185 Wis 2d 701, 518 NW2d 330 A conviction of being a felon in possession of a firearm in violation of 18 U.S.C.A. Appx. § 1202(a)(1) was affirmed, in States v Polk (1986, CA8 Mo) 808 F2d 33 United , even though no evidence was introduced concerning the condition of the gun or whether it had been test–fired. The statute does not require that the government prove that the gun was actually capable of firing, said the court; it is enough that the gun wa designed to fire. The gun introduced into evidence was a Smith and Wesson revolver, model 60.38. The court noted that the ju having the exhibit in plain view, could properly have assessed whether the gun could fire or was designed to fire. In any event, t court also reasoned that since the defendant's postarrest statement indicated that he had armed himself because he feared for his life, the jury could have inferred that he knew that the gun was capable of firing. In United States v York (1987, CA8 Minn) 830 F2d 885 , cert den 484 US 1074, 98 L Ed 2d 1010, 108 S Ct 1047 , later proceeding on other grounds (CA8 Minn) 865 F2d 171 , wherein a defendant asserted that the small handgun in question was inoperable because it had no firing pin and because the

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cylinder did not line up properly with the barrel, the court nevertheless affirmed his convictions of being a felon in receipt of firearm through interstate commerce (18 U.S.C.A. § 922(h)(1) ) and using a firearm in the commission of a crime of violence (18 U.S.C.A. § 924(c) ). Stressing the language of 18 U.S.C.A. § 921(a)(3) , which defines a firearm in part as a weapon designed to expel a projectile by the action of an explosive, the court pointed out that § 921(a)(3) does not require a firearm to be operable and that the defendant did not contend that the handgun in question was not designed to expel a projectile by the action of explosive—nor, added the court, does it appear that he reasonably could make that argument on the basis of the record in this case. For California and Georgia cases, see § 7[d] , 7[e] . Although reversing on other grounds a conviction of possession of a firearm by a felon, the court, in State v Middleton (1976) 143 NJ Super 18, 362 A2d 602 , affd 75 NJ 47, 379 A2d 453 , held that the trial judge had properly denied the defendant's motion for acquittal even though the state had stipulated that the pistol in question was inoperable. The statutory enumeration of prohibited weapons specifically included "any firearm, whether or not capable of being discharged," and from this language the court fo obvious that one of the evils sought to be suppressed by the legislature was the possibility of any show of force, real or apparent, by one who had already been proven a felon. Under a statute making it unlawful for any person having previously been convicted of any felony to have in his possession or under his immediate control, or in any vehicle that he is operating or in which he is a passenger, any pistol, imitation or homem pistol, machine gun, sawed–off shotgun or rifle, or any other dangerous or deadly firearm that could be easily concealed on th person, in personal effects, or in an automobile, the court, in Sims v State (1988, Okla Crim) 762 P2d 270 , affirmed a conviction and held that whether a pistol is capable of firing is not an element that must be proven to sustain such a conviction. Without citi case authority, the court interpreted the legislative intent as being to keep guns, real or imitation, out of the possession or control of felons. The gun in question was a 6–shot,.22–caliber pistol. For Oregon cases, see § 7[a] . CUMULATIVE SUPPLEMENT Cases: Handgun that was inoperable due to broken firing pin and damage to firing-pin channel was "firearm" within federal statut definition, and thus could serve as basis for felon-in-possession conviction; handgun was still "designed to … expel a projectile by the action of an explosive," and had not been so redesigned or modified that it could not be converted into operable weapon. 18 U.S.C.A. §§ 921(a)(3) , 922(g)(1) . U.S. v. Rivera, 415 F.3d 284 (2d Cir. 2005) . Statute defining crime of possession of firearms by a convicted felon does not require that the firearm be operable at time possession. LSA–R.S. 14:95.1 . State v. Felder, 823 So. 2d 1107 (La. Ct. App. 2d Cir. 2002) . [Top of Section] [END OF SUPPLEMENT] § 7[d] By previously convicted person—California cases The viability of some of the in–point California cases involving possession of a concealable firearm by a previously convicted felon has been affected by a subsequent (1969) statutory amendment to a definitional section.[FN49 ] In the following pre–amendment California cases the courts, taking the position that operability was a requirement for violation of the statu apparently held that the operability of the revolvers in question was established or supportable. Affirming a conviction of possession of a concealable firearm, a revolver, after having been convicted of a felony, the court, in v McCloskey (1926) 76 Cal App 227, 244 P 930 People , held that the jury was justified in concluding, from an inspection of the revolver and its cartridges, together with the testimony of a sheriff and his deputy, that the revolver did not come within a statutory exception for revolvers "incapable of use as such. Although the.32–caliber revolver was described as "quite rusty," the sheriff and his deputy both testified that in their opinion revolver was in such mechanical condition that it could be fired. The sheriff stated that although it was doubtful whether the hammer of the revolver would strike sufficiently hard to explode the old shells found with it, it would go off if new shells were put in it. No matter how disabled a weapon may be, said the court, if it still retains its efficiency to such an extent that it may in some manner be used as originally intended, a person carrying such a weapon contrary to law will be held criminally liable.

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Affirming, as modified on other grounds, a conviction for possession of a.38–caliber revolver capable of being concealed on person, the defendant having been previously convicted of a felony, the court, in People v De Falco (1959, 2nd Dist) 176 Cal App 2d 590, 1 Cal Rptr 578 , rejected a contention that there was insufficient proof of the corpus delicti in that there was no evidence that the defendant had a gun that was capable of firing a cartridge. The governing statute specifically excepted "revolvers incapable of use as such," and court held that the state was not required to prove that the gun did not come within the exception. Nevertheless, the court recognized that it was the purpose of the statute to make it unlawful for ex–convicts to carry guns that will shoot and not mere objects that look like usable guns. In the following pre–amendment California case involving the same statute, the court held that the operability of the pistol in question had not been established. Reversing a conviction of feloniously possessing a concealable firearm after having suffered a prior felony conviction, the court, in People v Jackson (1968, 2nd Dist) 266 Cal App 2d 341, 72 Cal Rptr 162 [FN50 ] (superseded by statute as stated in People v Thompson (1st Dist) 72 Cal App 3d 1, 139 Cal Rptr 800 , this subsection) and (superseded by statute as stated in People v Claseman, 183 Cal App 3d Supp 1, 229 Cal Rptr 453 , § 45[b]), declared that it was not a violation of the governing statute to carry a pistol that is so broken or out of repair that it cannot be fired. The court stressed that the only testimony concerning the pist question was to the effect that it was inoperable as a pistol. The defendant testified that the pistol didn't work, that it didn't have firing pin clip, and that the firing pin "wasn't setting right—off at an angle." A police officer testified that the envelope prepare testing the pistol stated "Unable to test fire. Hammer fall too weak." The court also took the position that a pistol that was incapable of being fired because it had a broken firing pin is not a "pistol" within the meaning of the statute in the absence of a showing that a workable firing pin was also in the possession of the defendant and that a simple substitution of pins would have made the w operable. In the following postamendment California case involving the same statute and a gun that was apparently a pistol, the court held that operability was not a requirement for violation of the statute. A conviction of possession of a concealable firearm by a person who has been convicted of a felony was affirmed, in People v Thompson (1977, 1st Dist) 72 Cal App 3d 1, 139 Cal Rptr 800 , where the gun in question, apparently a pistol, was missing a clip without which, as a safety measure, it could not be fired unless an object such as a pencil was inserted into the gun to release th safety. There was no evidence that the defendant possessed any item—a clip, pencil, or the like—that would release the safety Before a statutory amendment, a definitional section had provided that "pistol," "revolver," and "firearm capable of being concealed upon the person" included any device, designed to be used as a weapon, from which is expelled a projectile by the force of any explosion or other form of combustion, and having a barrel less than 12 inches in length. The amendment added the statement that "pistol," "revolver," and "firearm capable of being concealed upon the person" included the frame or receiver of a such weapon. The court held that the purpose of the amendment was to nullify the rule of People v Jackson (1968, 2nd Dist) 266 Cal App 2d 341, 72 Cal Rptr 162 (this subsection), thereby expanding the scope of the statute to include possession of a weapon of the kind involved in the presen case. § 7[e] By previously convicted person—Georgia cases In Georgia handgun cases in which a statute prohibiting the possession of a firearm by a convicted felon was held to have be violated, the courts apparently have taken opposite positions as to whether operability is a requirement for violation. Thus, i following case the court expressed the view that operability was not required. A police officer's unrebutted testimony that he had removed from the defendant's pocket a handgun, a.38–caliber derringer, was held sufficient to support a finding that the defendant possessed a firearm, in Bryant v State (1984) 169 Ga App 764, 315 SE2d 257 , the court affirming a conviction of possession of a firearm by a convicted felon. A statute defined a "firearm" as including handgun, rifle, shotgun, or other weapon that will or can be converted to expel a projectile by the action of an explosive or electrical charge. The defendant argued for the necessity of testimony by a qualified ballistics expert to prove that the instrumen issue was presently capable of firing or that it could be converted for such use. However, the court stated that it did not believe tha the legislature had contemplated the necessity of proving the operability of the instrument where it was shown that the convicted felon possessed any of the weapons listed within the statutory definition of a firearm. However, the following case appears to support the contrary view. Although there was a lack of testimony specifically asserting that the guns found in the defendant's car were capable of fir projectiles, the court, in Jolly v State (1987) 183 Ga App 370, 358 SE2d 912 , nevertheless affirmed a conviction of possession of a firearm by a convicted felon. The court stressed that the police officer who found the guns testified that they were pistols—not th

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they appeared to be pistols. Noting also that no evidence had been introduced to refute the officer's testimony, the court conclude that the jury was authorized to find that the guns were actual working firearms. § 8[a] During commission of crime—View that operability is required for violation [Cumulative Supplement] A statute prohibiting possession of a firearm during the commission of a felony was held violated in the following case involvi pistol, the court indicating that operability of the gun was a requirement, which had been met, for violation of the statute. In Barnes v Housewright (1985, DC Nev) 603 F Supp 330 (applying Nevada law) , later proceeding on other grounds (DC Nev) 622 F Supp 82 and affd without op (CA9 Nev) 785 F2d 314 , the court denied habeas corpus relief to a petitioner who had been convicted of being an ex–felon in possession of a firearm, rejecting the contention that the state had not proved that the weapon seized would shoot. A state statute described a "firearm" as any weapon with a caliber of.177 inches or greater from which a projectile may be propelled. Holding that there was sufficient evidence in the case for the jury to find that the pistol in question was a "firearm" within the meaning of the statute, the court pointed to the arresting officer's testimony that the pistol had a shell in the chamber and that the officer had removed that shell as well as rounds from the grip of the gun. From this evidence, said the court, a jury reasonably could infer that the pistol would shoot even without actual proof of that fact, since one does not ordinarily put bullets into an inoperable gun. CUMULATIVE SUPPLEMENT Cases: To establish a firearm specification in connection with a crime, the state is required to prove that the offender possessed a weapon that was capable of firing a projectile by means of an explosive or combustible propellant and was operable or could readily hav been rendered operable at the time of the offense R.C. § 2923.11(B)(2). State v. Jeffers, 143 Ohio App. 3d 91, 757 N.E.2d 417 (1st Dist. Hamilton County 2001) . [Top of Section] [END OF SUPPLEMENT] § 8[b] During commission of crime—View that operability is not required for violation [Cumulative Supplement] Weapons statutes referring to possession during the commission of a crime were held violated in the following cases involving pistol, revolver, or handgun, the courts expressing the view that operability of the gun was not a requirement for violation statute—or at least for a prima facie case of violation. In Machado v State (1978, Fla App D3) 363 So 2d 1132 , cert den (Fla) 373 So 2d 459 , the court, affirming convictions of carrying a concealed firearm and unlawful possession of a firearm during the commission of a felony, held that a loaded 9–millimeter automatic pistol was a firearm despite an alleged failure of the state to prove that it was operable. A statute defin firearm as any weapon that will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; or the frame or receiver of any such weapon. Clearly, said the court, operability is not a determinative factor in defining a firearm. The court also noted that the pistol had been introduced into evidence and that the trial judge, as trier of fact, had had ample opportunity to inspect it and determine whether it came within the statutory prohibition. Affirming a conviction of possession of a firearm (apparently a pistol) during the commission of a felony, the court, in People v Stephenson (1979) 94 Mich App 300, 288 NW2d 364 , rejected a defense contention that the legislature had intended to cover only those situations in which the firearm could be use inflict injury on the victim of the original felony, so that the word "firearm" did not mean guns made inoperable because the unloaded or defective. The statutory definition of a firearm included any weapon from which a dangerous projectile may be propelled by using explosives, gas, or air as a means of propulsion. Another provision defined a "pistol" as any firearm, loa unloaded, 30 inches or less in length, or any firearm, loaded or unloaded, that by its construction and appearance conceals it a firearm. Reading the two statutes together, said the court, it is clear that the term "firearm" includes guns, both loaded and unloaded, that may fire a dangerous projectile by any of the means listed.

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Affirming a conviction of possession of a firearm during the commission of a felony, the court, in People v Mason (1980) 96 Mich App 47, 292 NW2d 480 (disagreed with in part by People v Brooks, 135 Mich App 193, 353 NW2d 118 , § 43), held that evidence that certain.22–caliber revolvers used in the commission of the charged felony possessed the necessary firing mechanisms and were in apparent working order went far beyond what was necessary to establish a prima facie case and that the trial judge denial of the defendant's motion for a directed verdict was proper. Observing that the prosecutor need not present proof of operability as an element of the prima facie case in a felony–firearm prosecution, the court adopted the reasoning that to ho otherwise could prevent prosecution where the weapon is not recovered, even though the victim testifies to its existence, and contrary requirement would undermine the legislative intent of discouraging the practice of carrying guns in circumstances in which harm is apt to occur. The court added that where the defendant raises the issue of whether a particular weapon is operable and, as such, a "firearm" under the statute, the prosecutor may have to present evidence on operability to convince the trier of fac that an operable firearm was actually present; however, no such evidence is needed to survive a motion for a directed verdict. See also People v Ray (1982) 119 Mich App 724, 326 NW2d 622 (disagreed with on other grounds by People v Brooks, 135 Mich App 193, 353 NW2d 118 , § 43), wherein the court, relying on People v Jackson (1981) 108 Mich App 346, 310 NW2d 238 , (§ 43), declared without discussion that the prosecutor was not required to prove that the.38–caliber handgun in question wa operable. However, the defendant's felony–firearm conviction was reversed on other grounds. An unloaded.38–caliber pistol was held to be a "firearm" within the meaning of a "felony–firearm" statute, apparently involving the carrying of firearms, in People v Prather (1982) 121 Mich App 324, 328 NW2d 556 , app den (Mich) 338 NW2d 188 , despite a lack of evidence that the gun would have been capable of being fired if loaded. Affirming the "felony–firearm" conviction, the court took the general position that the prosecutor need not present proof of operability as an element of a prima facie c felony–firearm prosecution. The court adopted the reasoning that to hold otherwise (1) could prevent prosecution under the statute in cases where, as here, the weapon is not recovered even though the victim testifies as to its existence; and (2) would be inconsistent with the legislative intent of discouraging the practice of carrying guns in circumstances where harm is apt to occur. Affirming a felony–firearm conviction, the court, in People v Broach (1983) 126 Mich App 711, 337 NW2d 642 , held that a.38–caliber revolver loaded with six rounds of ammunition was a "firearm" even though it had not been test–fired to determ whether it was functional. The felony–firearm statute made it a felony for any person to have in his possession a firearm at the time he commits or attempts to commit a felony. The court relied on People v Pierce (1982) 119 Mich App 780, 327 NW2d 359 , (§ 43), and People v Prather (1982) 121 Mich App 324, 328 NW2d 556 (this section), app den (Mich) 338 NW2d 188 , as having established that proof of operability of the weapon is not needed to include it within the prohibitions of the felony–firearm statute. Summarily rejecting the defendant's contention that his felony–firearm conviction was infirm because the operability o the.22–caliber revolver found in his pocket was never proven, the court, in People v Fort (1984) 138 Mich App 322, 361 NW2d 346 , declared that operability was not, and never had been, an element of a felony–firearm conviction, which was accordingly affirmed. The court relied primarily on the authority of People v Brooks (1984) 135 Mich App 193, 353 NW2d 118 , (§ 43). Affirming the imposition of a mandatory sentence on a conviction of armed robbery, under a statute requiring a mandatory sentence on a showing of the use or possession of a firearm in the commission of certain crimes, the court, in State v Gantt (1986) 101 NJ 573, 503 A2d 849 , (§ 18[a] ), held that proof of a gun's operability was not inherent in a statutory definition of "firearm" and therefore was not an essenti element in the imposition of a mandatory sentence. CUMULATIVE SUPPLEMENT Cases: "Firearm" is defined as any weapon from which a shot may be discharged, whether operable or inoperable, loaded or unloaded, and given this broad definition, recovery and testing of a weapon to determine if it is operable is not required for purpose of off possession of a firearm during the commission of a felony. 11 Del.C. §§ 222(11) , 1447A(a) . Poon v. State, 880 A.2d 236 (Del. 2005) . Fact that defendant's gun was allegedly inoperable did not preclude conviction for possession of firearm during commission of crime. O.C.G.A. § 16–11–106 . Sharp v. State, 565 S.E.2d 841 (Ga. Ct. App. 2002) . Statute prohibiting possession of weapon during commission of crime contains no requirement that state must prove that firea capable of being fired. O.C.G.A. § 16–11–106(b) . Herndon v. State, 229 Ga. App. 457, 494 S.E.2d 262 (1997) (overruled on other grounds by, Howard v. State, 233 Ga. App. 724, 505 S.E.2d 768 (1998) ).

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Operability of weapon is not element of crime of possession of firearm during commission off felony; defendant was prope convicted of crime of possession of firearm during commission of assault with intent to commit armed robbery, despite fact handgun defendant used was inoperable in that it had broken hammer. People v Thompson (1991) 189 Mich App 85, 472 NW2d 11 . A firearm does not have to be operable in order for the defendant to be guilty of use of a deadly weapon to commit a felony. Neb. Rev. St. §§ 28–1201 , 28–1205 . State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002) . [Top of Section] [END OF SUPPLEMENT] § 9[a] Carrying—generally or without license, permit, or registration—View that operability is required for violation—statute violated [Cumulative Supplement] Under a weapons statute proscribing carrying—either generally or without a license or permit or without registration—the courts, in the following cases involving a pistol, revolver, or handgun, apparently took the position that operability was a requireme violation of the statute and explicitly or implicitly held that operability of the gun in question was established or supportable. Affirming a conviction of carrying a pistol without a permit, the court, in State v Zayas (1985) 3 Conn App 289, 489 A2d 380 , certif den 195 Conn 803, 491 A2d 1104 , held that the jury could reasonably have concluded that the defendant's pistol was operable when he held it, even though t defendant claimed that it was then jammed, and the police found it jammed when it was lying on the ground a short time later. statute referred to a pistol as a firearm and defined a firearm as a weapon, whether loaded or unloaded, from which a shot discharged. An officer, who had extensive experience with firearms and who had inspected and test–fired the gun, testified that could have jammed when the defendant attempted to cock it or when it fell to the ground. In Anderson v United States (1974, Dist Col App) 326 A2d 807 , cert den 420 US 978, 43 L Ed 2d 659, 95 S Ct 1405 , the court, affirming a conviction of carrying a pistol without a license, where the pistol taken from the defendant had been test–fired by the police and certified as operable, recognized that when a defendant is charged with carrying a pistol without a license, government must prove that the weapon was operable. A conviction for carrying a pistol without a license can be sustained when all of the parts of a disassembled pistol are shown to have been conveniently accessible to the defendant, those parts can be quickly and easily reassembled into an operable gun, and the defendant was observed to be holding an object that reasonably appeared to be related to the gun, held the court, in Rouse v United States (1978, Dist Col App) 391 A2d 790 ,[FN51 ] affirming such a conviction. Police officers observed the defendant in a garage with a shiny object in his hand. They went to th spot where the defendant had just bent down, and they found there, covered with paper, a.32–caliber revolver frame. On the othe side of the garage they found the cylinder and the center pin for the frame lying together, along with two rounds of.32–c ammunition. The parts all fit together, as was demonstrated at trial, and the entire process of assembling and loading the weapon took about 15 seconds. The reassembled pistol was successfully test–fired and found to be fully operable. The court concluded tha the evidence amply supported the jury's conclusion that the defendant was in possession of an operable gun. Under a statute prohibiting the carrying of a pistol without a license and defining a pistol as any firearm with a barrel less than inches in length, the court, in Lee v United States (1979, Dist Col App) 402 A2d 840 , reasoned that because a firearm was by common usage a device capable of propelling a projectile by explosive force, operability was necessarily an element of the definition of a pistol. The court rejected a defense contention that the indictment was defective in failing to charge specifically tha the pistol was operable. To be a pistol, said the court, a firearm must be operable. A conviction of carrying a pistol without a license was accordingly affirmed. See also Rouse v United States (1979, Dist Col App) 402 A2d 1218 , wherein the court, rejecting the defense contention that the offense of carrying a pistol without a license merged into that of armed robbery, stated that carrying a pistol without a presupposes an operable and unlicensed pistol outside of one's own premises or place of business. Although a statute prohibiting the carrying of a pistol without a license did not declare operability to be an element of the offense, the court, in Morrison v United States (1980, Dist Col App) 417 A2d 409 , held that dicta in several District of Columbia cases had had the effect of writing into the statute a requirement that the government establish as an essential element of its proof that the pistol carried was operable. Affirming the defendant's convictions of that and other offenses, the court further held t

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although the pistol was not introduced into evidence because it was never recovered, it was reasonable for the jury to infer from the circumstances of a robbery that the guns carried by the defendant and his confederates were loaded and operable. When the th robbers burst into the victims' residence, each displayed a gun, and the gun of one of the defendant's companions was discharged One of the victims was forced to lie on his stomach on the living room floor; he was guarded by the defendant, who stood above him with a gun aimed at his body while the defendant's companions searched the bedroom for valuables. Just as it was reasonable for a robbery victim to assume that a pistol directed at him in a menacing manner is loaded and operable, said the court, so too would it be reasonable for the jury to infer from such facts that the gun was operable. In Commonwealth v Stallions (1980) 9 Mass App 23, 398 NE2d 738 , the court, affirming a conviction of carrying a firearm without a license, summarily held that although the.38–caliber revolver taken from the defendant by a police officer had not be tested and found operable, the jury, which had before it as exhibits the revolver and five cartridges taken from the chamber as well as (unspecified) testimony concerning them, could have found, without the aid of expert testimony, that the revolver was capable of discharging a bullet. Affirming a conviction of unlawfully carrying a firearm, the court, in Commonwealth v Raedy (1987) 24 Mass App 648, 512 NE2d 279 , review den 401 Mass 1101, 517 NE2d 1289 , held that even if the small.25–caliber semiautomatic handgun in question could be discharged only once and only when held in an inverted position, it was still a "firearm" with a statutory definition as a weapon from which a shot or bullet can be discharged, since a single bullet could inflict the harm that the statute had been designed to prevent. The gun, when retrieved, was loaded with a clip containing five or six rounds of ammunition. The clip was held in place with scotch tape. A police firearms expert testified that to operate the firearm in question in the manner in which a gun is intended to be used, a "minor" repair first had to be made: the sear spring, which was incorrectly aligned, had to be put in proper position in order for pressure to be applied to the sear engages the firing pin. According to this expert, the repair could easily be made by someone who was familiar with or owned weapon. Moreover, directions for the repair could be found in the manual that was provided with the gun at the time of pur Although, as a safety measure and to prevent damage to the pistol, the expert did not test–fire it in its unrepaired state, he testified that it could be fired without repair at least once if it were inverted and fired upside–down. The court found no error in the tria judge's jury instructions concerning the firing capability of the weapon. The court characterized these instructions as being substantial accordance with the principle that while a weapon designed for firing projectiles may be so defective or damaged that has lost its initial character as a firearm, this character is not lost when a relatively slight repair, replacement, or adjustment will make it an effective weapon. The court distinguished Commonwealth v Rhodes (1986) 21 Mass App 968, 489 NE2d 216 , (§ 9[b] ), review den 397 Mass 1102, 492 NE2d 98 , on the grounds that there (1) the evidence was that the pistol could not be fired without first making repairs; and (2) there w evidence to show whether the defendant or an untrained user of a pistol could make the repairs. The Raedy court found nothin Rhodes that required the state to prove that the particular defendant possessed the ability and knowledge to repair the gun. The court added that the "objective" versus "subjective" distinction insisted on by the defendant had been adequately presented to the jury by instructions regarding the difference between "minor" and "major" repairs. See also Commonwealth v Townsend (1967) 211 Pa Super 135, 235 A2d 461 , wherein the court, without discussing the operability issue, held that a police officer's testimony that he noticed a bulge in the defendant's pocket that proved to be a.38–caliber pistol, loaded and in operable condition, was sufficient to support a verdict of guilty of carrying a firearm withou license. The complainant's testimony that the defendant possessed a gun allowed a reasonable inference of operability despite the lack o direct testimony on this issue, held the court, in Commonwealth v Holguin (1978) 254 Pa Super 295, 385 A2d 1346 , although vacating on other grounds the sentence for carrying a firearm without a license. The defendant ran into the complainant's bar with a small.25–caliber automatic pistol in his hand and pointed the gun at everyone in the bar. As the defendant and his two companio were leaving the bar after terrorizing the patrons, he yelled out that they would be back with more guns. Adopting the view reasonable fact finder may infer operability from an object that looks like, feels like, sounds like, or is like a firearm, the distinguished Commonwealth v Layton (1973) 452 Pa 495, 307 A2d 843 , (§ 7[b] ), on the ground that the parties there had stipulated that the firearm was not operable at the time of the alleged offense. In the final analysis, concluded the court, the instan case was controlled not by Layton but by Commonwealth v Yaple (1976) 238 Pa Super 236, 357 A2d 617 , (§ 42). When viewed in the light most favorable to the state, the evidence, in State v Benevides (1981, RI) 425 A2d 77 , was held sufficient to support a reasonable inference that the.22–caliber automatic pistol in question had been operable before its impact with a telephone pole when the defendant threw it out the window of his car, the court affirming a conviction of carrying a pistol in a motor vehicle without a license. A police officer testified that (1) he saw the object leave the car in one piece; (2) he recovered the pistol near the telephone pole with the clip and a piece of matching handle nearby; and (3) when he reassembled the pist

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test–fired it, it was inoperable because the locking mechanism was broken. Based on the facts that there were two rounds ammunition in the clip belonging to the pistol and that the pistol had a firing pin, the officer concluded that the pistol's inoperability had resulted from its striking the telephone pole. Affirming a conviction of carrying a pistol, the court, in Smith v State (1906, Tex Crim) 96 SW 1086 , held the state's evidence sufficient despite the defendant's claim that the pistol was broken. The court pointed out that (1) there was no evidence that the pistol was broken so that it could not be fired; (2) the conflict in the evidence had been settled by the jury adversely to the defendant; and (3) the court did not feel authorized to disturb the jury's finding. A conviction of unlawfully carrying a pistol was affirmed, in Farris v State (1912) 64 Tex Crim 524, 144 SW 249 , the court holding that it was no defense that the pistol was broken if it could still be fired. The defendant, his wife, and a former employee o his testified that the mainspring of the pistol was broken, and all of them except the son testified that it could not be fired. However, the jury examined the pistol under an instruction that if the pistol was so broken or out of repair that it could not be used to shoot with or could not be fired, it was not a violation of the law to carry it. Thus, the court concluded that the jury had determined that the pistol could be fired. It is a violation of the law to carry a pistol, even though one should place one part of it in one pocket and another part in anoth pocket, held the court, in Crain v State (1913) 69 Tex Crim 55, 153 SW 155 , affirming a conviction of unlawfully carrying a pistol. A police officer heard some shots fired, went to the scene, and took a pistol from the defendant, who had the cylinder in jumper pocket and the remainder of the pistol in his pantaloons pocket. The court reasoned that one could soon put the parts together and that the law had been intended to keep one from carrying deadly weapons on or about his person. The court stressed that the defendant's pistol was in no way out of repair and that it would shoot when put together, as had been shown by all testimony. A conviction of unlawfully carrying a pistol was affirmed, in Rasberry v State (1913) 72 Tex Crim 13, 160 SW 682 , even though the defendant was supported by other witnesses in his contention that his pistol was out of order on the occasion in question because the cylinder would not revolve and it would not shoot. The defendant argued that the trial judge had erred in not telling the jury that it was no offense to carry a pistol that is broken or out of repair, without regard to whether it could be fired. Ruling that the proposed charge was not the law, the court held that even though a pistol is broken or out of repair, if it can still be used as a weapon with which to shoot, it is unlawful to carry it, unless it was being carried to be repaired. But see Steele v State (1914) 73 Tex Crim 352, 166 SW 511 , wherein the court, emphasizing that the statute under which the defendant had been convicted of carrying a pistol referred to "any" pistol, affirmed the conviction despite the contention that the trial judge should have instructed the jury, as requested by the defendant, that he should be found not guilty if the jury believed that the pistol was not in shooting condition. Instead, the jury was instructed that if the defendant carried a pistol, it would not make any difference whether the pistol was an old one or a new one, was loaded or unloaded, or was a good pistol or an inferior one. Finding no error in that charge, the court noted testimony that, inter alia, the pistol, although old looking, had a hammer and trigger a "seemed to be all there." v State (1922) 91 Tex Crim 240, 238 SW 661 In Jones , the court affirmed a conviction of unlawfully carrying a pistol, even though the defendant had taken apart the pistol and had b unable to replace the mainspring. The court merely pointed out that the jury had been adequately instructed that if the pistol, at th time it was carried, was in such a condition that it could not be readily assembled or fired, and if the jury had a reasonable doub about this, an acquittal was required. See also Tolbert v State (1952) 157 Tex Crim 101, 246 SW2d 896 , wherein the court, affirming a conviction of unlawfully carrying a pistol, held that the defendant, who at trial had denied having a pistol of any kind with him on the occasion in questio could not complain on appeal that the jury should have been instructed that the pistol carried by him must have been proven to be one capable of being fired and one possessed of all of the component parts of a pistol. The court observed that this issue had not been raised by the evidence. A conviction of unlawfully carrying a pistol was affirmed, in Moore v State (1965, Tex Crim) 385 SW2d 387 , where a police officer observed the cylinder from a revolver, a holster, and a box of shells on the seat of a car beside the defendant; the offi searched the car and found a.22–caliber pistol under the seat with the cylinder removed; the shells fit the pistol; the officer h difficulty in replacing and removing the cylinder; and the jury rejected the defendant's defense that he had been taking the pistol to a gun shop to trade or sell it. The court, without discussion, relied on Crain v State (1913) 69 Tex Crim 55, 153 SW 155 (this subsection). In Johnson v State (1978, Tex Crim) 571 SW2d 170 (not followed on other grounds by Torres v State (Tex App Corpus Christi) 751 SW2d 705

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, petition for discretionary review ref, en banc (Tex Crim) 1989 Tex Crim App LEXIS 87), the court declared that in a prosecution for unlawfully carrying a handgun, there need be no proof that the handgun was capable of being fired or possessed all of component parts of a handgun unless that issue was raised by the evidence. Holding that the defendant had never raised the regarding the.22–caliber pistol in question, the court affirmed a conviction of unlawfully carrying a handgun. CUMULATIVE SUPPLEMENT Cases: Defendant was properly convicted of carrying handgun and possession of unregistered short–barreled shotgun, even though evidence that gun was operable was circumstantial, where state was not required to test fire gun, and defendant could have discovery to have gun test–fired. Mangum v State (1996) 342 Md 392, 676 A2d 80 . [Top of Section] [END OF SUPPLEMENT] § 9[b] Carrying—generally or without license, permit, or registration—Statute not violated Under a weapons statute proscribing carrying—either generally or without a license or permit or without registration—the courts, in the following cases involving a pistol, revolver, or handgun, apparently took the position that operability was a requireme violation of the statute and explicitly or implicitly held that operability of the gun in question was not established. See also Jackson v United States (1978, Dist Col App) 395 A2d 99 , wherein, although no issue of operability was involved, the court stated that carrying an operable pistol was one of the elements of the crime of carrying a pistol without a license. A conviction of carrying a pistol without a license was reversed, in Curtice v United States (1985, Dist Col App) 488 A2d 917 , because the government had failed to prove that the pistol was operable. As originally received by the police firearms examiner, the pistol failed to fire, but he was able to fire it after partially disassembling the gun into four parts, oiling and stretching the spring, and reassembling the gun. This adjustment took less than one minute. Distinguishing Rouse v United States (1978, Dist Col App) 391 A2d 790 , (§ 9[a] ), wherein the court had emphasized that the separate parts of a pistol carried by the defendant could quickly and easily h reassembled into an operable pistol, the Curtice court stressed that in the instant case, although anyone might have been able to do the task of fixing the pistol mechanically, it required expert knowledge to diagnose what the defect was that prevented firing and what was necessary to correct it, and there was no evidence that the defendant had such knowledge. Reversing the defendant's conviction of, inter alia, unlawfully carrying a handgun, the court, in Wright v State (1987) 70 Md App 616, 522 A2d 401 , held that the trial judge had erred in refusing to instruct the jury, as requested by the defendant, that the term "handgun" means any pistol, revolver, or other firearm that is, inter alia, "operable or easily made operable." The court adopted the views that handgun must be a "firearm" and that a firearm must propel a missile by gunpowder or some such similar explosive or be r converted into a device capable of so propelling a missile. Even a weapon designed and constructed as a firearm must actually capable of discharging a missile, declared the court. The defendant had verbally threatened to kill a man and had pulled the trigger of a gun in an apparent attempt to carry out that threat, but the gun had merely clicked and not fired. The court noted that one could imagine any number of rational explanations for the failure of the gun to fire, one of which was that the gun was simply inoperable. Although such an inference is by no means a required one, said the court, the jury, if given the requested instruction, could fairly have entertained a reasonable doubt as to whether the gun was operable and thus as to whether it was a "firearm." The c distinguished Couplin v State (1977) 37 Md App 567, 378 A2d 197 , (§ 18[b] ), and York v State (1983) 56 Md App 222, 467 A2d 18[b] 552 , (§ ), on the ground that they involved the sufficiency of the evidence to sustain a conviction rather than the sufficiency of the evidence to generate enough of a question as to the operability of the weapon to require the jury to consider that point. Reversing a conviction of unlawfully carrying a "firearm," defined by statute as a weapon from which a shot or bullet can discharged, the court, in Commonwealth v Rhodes (1986) 21 Mass App 968, 489 NE2d 216 , review den 397 Mass 1102, 492 NE2d 98 ,[FN52 ] held that an essential element of the offense was that the firearm carried be a working one, which fact had not been estab According to the testimony of the state's ballistics expert, the.25–caliber automatic pistol in question was defective in that it had

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bent sear bar connector lever. The lever had a 60–degree bend instead of the proper 90–degree bend, and this flaw prevented contact with the trigger bar and, in turn, kept the firing pin from striking the live load. To make the pistol work, the expert removed a working sear bar from another pistol and installed it in the defendant's pistol. To do this, he first had to fieldstrip the defendan pistol and remove the misshapen sear bar. The court concluded that the evidence could not have enabled the jury to find that th repair required to the defendant's pistol was as minor and obvious as the insertion of a firing pin in the submachine gun in Commonwealth v Bartholomew (1950) 326 Mass 218, 93 NE2d 551 , (§ 38[a] ). The court observed that although the repair in the instant case was an insubstantial hurdle for the ballistician, who was a weapons expert with specialized training, there was n evidence sufficient to justify an inference that the defendant was sufficiently skilled to repair the weapon or that an untrained user of the pistol could make the repair. Because the state's own and only evidence was that the defendant's pistol could not be fired, said the court, the defendant's motion for a required finding of not guilty had been wrongly denied. It is not an offense to carry a pistol if it is so out of repair that it cannot be fired at all, and this, it seems, would include the fact, if so, that it was so defectively manufactured that it could not be fired at all, held the court, in Miles v State (1915) 77 Tex Crim 597, 179 SW 567 , reversing a conviction of carrying a pistol. The defendant and other witnesses testified that they had tried many times—before about the time of, and after the alleged offense—to shoot the gun; that it would not shoot and could not be made to shoot; and that the plunger was so short that it would not strike the cap and explode the cartridge. The trial judge was held to have erroneous refused to submit the defectiveness issue to the jury. In Davis v State (1915) 77 Tex Crim 598, 179 SW 702 , the court expressed the view that if the defendant had requested the trial judge to instruct the jury to acquit if the pistol in question was broken or so out of repair that it would not shoot and could not be fired, the trial judge should have done so. Nevertheless, the court affirmed a conviction of unlawfully carrying a pistol, noting the defendant's failure to request such a legally correct jury instruction. Where the state's evidence showed the defendant's possession of a whole pistol, and the defendant's evidence showed his possession of a pistol minus a cylinder, the court, in Smith v State (1921) 89 Tex Crim 606, 232 SW 811 , reversed a conviction of unlawfully carrying a pistol, holding that the trial judge's instruction to the jury on the issue had failed to present clearly th defendant's theory and was otherwise erroneous. The jury was charged that the carrying of a part of a pistol that is not capable o being used for shooting is not a violation of law but that it is a violation of law to carry a pistol, whether it may be a new one or an old one, a good one or a bad one, or whether all of its parts are together at the time. The last clause of the instruction was held n called for by the facts of the case and likely to mislead the jury, since there was no issue as to the defendant's possession disconnected and separate parts of the pistol. The court reasoned that the charge might have led the jury to conclude that althoug some part of the pistol was not with that exhibited by the defendant, such carrying might be unlawful. It is not unlawful to carry a pistol that has no cylinder, held the court, in Cook v State (1881) 11 Tex App 19 , reversing a conviction of unlawfully carrying a pistol. There was evidence tending to show that the defendant carried all of the pistol except the cylinder, which was in the possession of another person. Concluding that without a cylinder the remainder was insuffici constitute a pistol, the court cautioned that it was not holding that a person would not violate the law by carrying the cylinder and the other part of the pistol, with the cylinder detached, since the rapidity with which the parts might be detached and replaced in their proper relations to each other would render detection and punishment very uncertain. Reversing a conviction of unlawfully carrying a pistol, the court, in White v State (1902, Tex Crim) 66 SW 773 , held that since there can be no violation of law unless there is an intention to do the thing prohibited by law, the defendant could not be guilty if, as the evidence indicated, he had removed the cylinder rod from the pistol and left the rod at home in the belief that he could then exhibit the pistol without violating the law and in the further belief that the pistol could not then be made to shoot or b used as a firearm. Although one witness testified that it would be dangerous to shoot the pistol without the cylinder rod because would be likely to split the ball and injure the person firing it, the court stressed that the defendant did not know that the pistol could be fired in that condition. § 9[c] Carrying—generally or without license, permit, or registration—General view not at issue under statutory exception—statute violated Construing or apparently construing a statutory exception to a weapons statute proscribing carrying—either generally or witho license or permit or without registration—the courts, in the following cases involving a broken, dismantled, or inoperable pi revolver, or handgun, held that a violation of the statute was established or supportable, without expressing a general view about the effect of inoperability. Affirming a conviction of carrying a pistol without a license, the court, in Morris v State (1915) 17 Ga App 271, 86 SE 462 ,

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summarily held that the statute creating the offense was violated by carrying a broken and temporarily inefficient pistol with th intent of transporting it to its owner, where the defendant, while on his way to the owner, added to his original purpose a resolution to produce the pistol suddenly and use it, and did so produce and use it, in making a hostile demonstration against one whom happened to encounter. Where the defendant was found with a handgun under the front seat of his car and the cylinder for it in a grocery bag in the backseat, and there was testimony that he had experience with guns, that the gun could have been assembled easily, that he had been seen with his arm in the backseat doing something, and that he quickly found the cylinder in the bag when a police officer asked where it was, the court, in Beck v State (1981, Ind App) 414 NE2d 970 , affirmed a conviction of, inter alia, knowingly and unlawfully carrying a firearm without a license. The defendant claimed to have come within a statutory exception for carryin handgun unloaded and in a secure wrapper to a place of repair. However, the court, adopting the view that the "secure w contemplated by the statute must be such as to prevent immediate or ready access to the injurious capabilities of the weapons carried, stated that it was unpersuaded that a handgun under the front seat of a vehicle with a cylinder within easy reach pr immediate or ready access to the gun. The court also pointed out that the jury could have easily inferred that the defendant, w stopped for speeding, had disassembled the gun and placed the cylinder in the bag. Where the defendant's pistol was rusty and difficult to unbreech, but there was conflicting evidence as to whether it would shoot, the court, in Roberts v State (1910) 60 Tex Crim 111, 131 SW 321 , affirmed a conviction of carrying a pistol. The court explained that although the defendant had the right to get his pistol from the house of another and, if it was out of repair, carry it to s convenient gunsmith and have it repaired, he did not have the right to turn aside from his journey, purposely go to the priva residence of other parties, invade their premises, and exhibit his pistol. Affirming a conviction of carrying a revolver, the court, in State v Tapit (1903) 52 W Va 473, 44 SE 231 , held that the fact that the revolver was out of repair furnished the defendant no justification because, although the statute excepted carrying a revolver or other pistol from one's dwelling house to any place where repairing is done, to have it repaired, and back again, defendant, a peddler, was carrying the revolver of another person, not his own, from the defendant's—not the owner's—dwellin house to the place of repair. § 9[d] Carrying—generally or without license, permit, or registration—Statute not violated [Cumulative Supplement] Construing or apparently construing a statutory exception to a weapons statute proscribing carrying—either generally or witho license or permit or without registration—the courts, in the following cases involving a broken, dismantled, or inoperable pi revolver, or handgun, held that a violation of the statute was not established, without expressing a general view about the inoperability. A conviction of carrying a pistol was summarily reversed, in Underwood v State (1895, Tex Crim) 29 SW 777 , where the uncontradicted evidence showed that the pistol carried by the defendant was then out of repair, the mainspring being broken, and that he was carrying it to a gunsmith for repairs. If these facts were believed by the jury, said the court, the defendant should have been acquitted. The reversal of a conviction of carrying a pistol was held warranted, in Fitzgerald v State (1907) 52 Tex Crim 265, 106 SW 365 , by evidence establishing that the defendant had a broken pistol, out of repair, and that he carried it to a shop to have it repaired but, failing to find the blacksmith at home, carried it on to another town and then returned to the blacksmith shop and had the pistol repaired. The defendant and his son testified that the pistol was out of repair, could not be used, and was not in condition to shoo The blacksmith who repaired the pistol testified that it had been "practically in a useless condition." The court stated that th defendant had the right to have his pistol repaired and that if it was such a pistol that was not prohibited by the governing statute from being carried, the fact that he carried it to the second town made no difference. A conviction of unlawfully carrying a pistol was reversed, in Britton v State (1910) 57 Tex Crim 583, 124 SW 684 , where (1) the state's witness knew nothing about the pistol except that he saw the defendant with it in his hand as he overtook him on the road home; and (2) the defendant's witnesses testified that at the time he was seen with the pistol, it was out of repair and would not shoot because the cylinder would not revolve and that the defendant had carried it to town to have it repaired. The court stressed that (1) there was no contradiction of the fact that the pistol was out of repair and would not shoot; and (2) the defendant had the right to carry the pistol to the shop to have it repaired and, when the shop was closed, to carry it home with him. CUMULATIVE SUPPLEMENT

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Cases: Trial court erred in convicting defendant of unlawful carrying of handgun, where defendant was arrested at traffic stop with cylinder of pistol in his pocket and rest of broken–down gun in box under seat, since statutory exception for inoperable weapo applies unless weapon is immediately accessible. People v Freeman (1990, 3d Dist) 196 Ill App 3d 370, 143 Ill Dec 73, 553 NE2d 780 , app den (Ill) 149 Ill Dec 328, 561 NE2d 698 . [Top of Section] [END OF SUPPLEMENT] § 9[e] Carrying—generally or without license, permit, or registration—View that operability is not required for violation [Cumulative Supplement] CUMULATIVE SUPPLEMENT Cases: Defendant's conviction for carrying handgun without permit was supportable, although there was no evidence that handgun operable, since handgun was, by definition, firearm designed to expel projectile by explosion, and this definition focused on weapon's design rather than its operability. Manley v State (1995, Ind App) 656 NE2d 277 , transfer den (Dec 7, 1995). Handgun which was incapable of discharging bullet due to broken firing pin was "firearm," for purposes of offenses of carryi firearm without license and of possession of firearm without firearm identification card, where evidence showed that replacing broken firing pin with new one was simple task requiring only 10 to 15 minutes. M.G.L.A. c. 140, § 121 ; c. 269, § 10(a, h) . Com. v. Prevost, 44 Mass. App. Ct. 398, 691 N.E.2d 592 (1998) , review denied, 427 Mass. 1104, 695 N.E.2d 667 (1998) . [Top of Section] [END OF SUPPLEMENT] § 10[a] Concealed[FN53 ]—View that operability is required for violation—statute violated [Cumulative Supplement] Apparently taking the position that operability was a requirement for violation of a statute that prohibited the carrying of co weapons, the courts, in the following cases involving a pistol, revolver, or handgun, explicitly or implicitly held that operability o the gun in question was established or supportable. It cannot be doubted that the weapon carried was a pistol, even though it may not have been in good repair and may have bee scarcely more capable of inflicting injury than the most improved firearm unloaded or the old "flint and steel" gun without the flint, v State (1875) 53 Ala 508 held the court, in Atwood , affirming a conviction of carrying a concealed weapon. One of the tubes of the pistol was much flattened and out of order, one o the locks was so much out of order that it would not stand cocked at all, and the other lock would not work with sufficient for explode a cap, but the pistol could be discharged by drawing the hammer further back and letting it fall from the hand or by striking the caps with a knife. The court stressed that the offense did not consist of carrying a pistol that is capable of being used as a weapon of present offense or defense; rather, the statute proscribed carrying "a pistol, or fire–arms of any description." Until th pistol has lost so many of its parts that it has ceased to be a firearm and is incapable of use as such, carrying it concealed, in t absence of the exculpatory circumstances mentioned in the statute, is an indictable offense, said the court, and the manner in whic the weapon can be fired does not enter into its definition no matter how it may affect its value and utility. Relying on Atwood v State (1875) 53 Ala 508 (this subsection), the court, in Hutchinson v State (1878) 62 Ala 3 , summarily affirmed a conviction of carrying a pistol concealed about the person, where although the cylinder of the pistol was separated from the rest of the firearm, the defendant carried both parts in his pocket without anything to prevent an easy readjustment of the parts to make the weapon effective. Although reversing on other grounds a conviction of carrying a concealed pistol, the court, in Redus v State (1886) 82 Ala 53,

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So 713 2 , held that the small cartridge pistol carried by the defendant was a "pistol" within the meaning of the governing statute even though the handle and mainspring were broken, where the evidence tended to show that the gun could be fired by holding it in one hand and striking the hammer with a knife or other instrument. To constitute the statutory offense, explained the court, it is not requisit that the pistol be complete in all its parts or capable of direct and immediate use for offense or defense; neither completenes impaired condition, nor efficiency is a proper subject of inquiry unless the gun has lost so many of its parts as to be harmles worthless as a weapon, and thus ceases to be a firearm. Observing further that the condition of a pistol may vary without destroying its essential nature, the court stated that a pistol that is difficult to discharge or that cannot be discharged in the ordinary way, but can be by using a match or by striking the hammer, is a pistol. Relying on Redus v State (1886) 82 Ala 53, 2 So 713 (this subsection), the court, in Fielding v State (1902) 135 Ala 56, 33 So 677 , held that the defendant had violated a statute prohibiting the carrying of concealed weapons, where the defendant's pistol w complete in all of its parts except that the mainspring was broken. Affirming the defendant's conviction, the court noted that although the pistol could not be fired in the usual manner, it could be discharged by striking the hammer with a knife or other instrument. CUMULATIVE SUPPLEMENT Cases: There was sufficient evidence to establish that pistol found in defendant's automobile was operable, and thus there was suffi evidence to convict defendant of carrying concealed pistol in vehicle, where, at time it was found, pistol was loaded with four rounds and two spent shells and appeared to be in good operating condition, based on visual inspection, even though defense counsel, during cross–examination, brought out that police had not attempted to fire weapon and were not able to state under oath that it was operable. People v Gardner (1992) 194 Mich App 652, 487 NW2d 515 . [Top of Section] [END OF SUPPLEMENT] § 10[b] Concealed[FN* ]—Statute not violated Apparently taking the position that operability was a requirement for violation of a statute that prohibited the carrying of co weapons, the courts, in the following cases involving a pistol, revolver, or handgun, explicitly or implicitly held that operability o the gun in question was not established. v State (1871) 46 Ala 88 In Evins , the court, reversing a conviction of carrying a pistol concealed about the person, held that a pistol, to be within the purview governing statute and the evil intended to be prevented, must have such a degree of perfectness that it may reasonably be carried and used as a weapon. It is not enough, said the court, that it has a stock and a barrel and that it may be loaded and fired by a match or in some other way. The pistol carried by the defendant could not be fired as a pistol is usually fired. It had no mainspring or other necessary machinery of a lock. The hammer or cock was disconnected and loose. The tube was so flattened as not to be touched by the hammer when down. It was doubtful whether it could be fired by a cap on the tube. Concluding that the pisto worthless as a weapon, the court reasoned that no sensible person would have relied on it as a weapon to attack an adversary o defend himself. A conviction of carrying a concealed weapon, a pistol, was reversed, in Roberts v State (1934) 26 Ala App 84, 153 So 663 , where the pistol shown to have been in the defendant's possession had lost so many of its (unspecified) parts as to be harmle worthless as a weapon and to have ceased to be a firearm. Without discussion, the court relied on Redus v State (1886) 82 Ala 53, 2 So 713 , (§ 10[a] ). Under a statute making it a misdemeanor to wear any pistol concealed as a weapon, unless on a journey, the defendant's convictio was reversed, and a new trial was granted, for lack of proof that the two unloaded pistols found on his person—one of which without a tube—were worn as weapons, in Carr v State (1879) 34 Ark 448 . Construing the statutory phrase "as a weapon" to mean for the purpose of having it convenient for use in fight, the court stressed that one of the pistols in question was wholly unfit for use even if it had been loaded. It having been affirmatively shown that the pistols could not have been used as weapons, the cou

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regarded as rebutted the presumption that the pistols were worn to be used as weapons. Reversing a conviction of carrying a concealed weapon, the court, in People v Huizenga (1989) 176 Mich App 800, 439 NW2d 922 , app den, certificate for ques declined 433 Mich 908, 448 NW2d 718, held that a "pistol," as defined in the concealed weapon statute, must be an operable pistol; that is, said the court, the pistol must be capable of propelling the requisite–sized danger projectile or be able to be altered to do so within a reasonably short time. The statute defined a "pistol" as a firearm, loaded unloaded, of a certain size and defined a "firearm" as including any weapon from which a dangerous projectile may be propelled by using explosives. The "pistol" that fell from the defendant's jacket had a hammer that was broken in half. The court stressed that the pistol was totally inoperable in that it was totally incapable of propelling a dangerous projectile and that the defendant could not hav readily made it operable. The court disapproved People v Jiminez (1970) 27 Mich App 633, 183 NW2d 853 , (§ 10[c] ), as involving an interpretation of the concealed weapons statute that was too broad and not fully justified in light of the purpose o statute, the legislature having made a distinction between firearms that are merely unloaded and firearms that are totally inoperable. Reversing a conviction of carrying a concealed weapon, the court, in Burnside v State (1913) 105 Miss 408, 62 So 420 , held that the object in question, although it may have been at one time a pistol, could no longer be called a pistol because it was rusty and filled with dirt and could not be opened, loaded, unloaded, cocked, fired, or otherwise made to work. Conceding the possibility of taking the material contained in the object and, with the addition of other materials, constructing a pistol, the court concluded that this was not enough to make it presently a pistol. The court distinguished Mitchell v State (1911) 99 Miss 579, 55 So 354 , (§ 10[c] ), on the ground that the object in the present case was permanently—not temporarily—inefficient. Except for its general appearance, which indicates that it was once in use as a pistol, said the court, the object here has none of the general characteristics of a pistol and has ceased to be such a weapon. § 10[c] Concealed[FN* ]—View that operability is not required for violation [Cumulative Supplement] It was held or apparently held, in the following cases involving a pistol, revolver, or handgun, that operability was not a requirement for violation of a statute prohibiting the carrying of concealed weapons. Disapproving People v Claseman (1986) 183 Cal App 3d Supp 1, 229 Cal Rptr 453 , (§ 45[b] ), as being unduly restrictive in effectuating the purpose of the state dangerous weapons control statute in light of its legislative history and as being inconsistent with all other decisional authority construing related provisions of the statute, the court, in People v Marroquin (1989, 2nd Dist) 210 Cal App 3d 77, 258 Cal Rptr 290 , mod (Cal App 2nd Dist) slip op, held that a firearm need not be operable in order to convict one of carrying a concealed weapon on his person. Affirming such a conviction, the court stated that the substantiality of the imminent threat to public safety from easily obtainable, concealable weapons used to perpetrate violent crime, which was the focus of the statute's legislative history existed irrespective of operability. The weapon in question was a.22–caliber semi–automatic handgun that would not fire because it was missing a magazine and because a spring inside the magazine was not working properly. Despite many opportunities to do s said the court, the legislature has not authorized inoperability of a weapon as a defense to the present section or any related section of the statute; on the contrary, the legislature continues to target the unlawful activities of an ever violent society. Reversing the dismissal of an information charging the defendant with carrying a concealed firearm, "to wit: the frame of a pistol, the court, in State v Altman (1983, Fla App D3) 432 So 2d 159 , held that although the defendant's pistol was not operable until missing parts were added, operability was not a determinative factor in the statutory definition of a firearm as any weapon that will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; or the frame or receiver of any weapon. An airport search disclosed within the defendant's wallet the handle, hammer, and barrel assembly of a.22–caliber derringer revolver totaling about 2 to 3 inches in length. He did not have in his possession or in his baggage the revolver cylinder that holds the bullets or the pin that holds the cylinder to the rest of the gun, which was otherwise intact. The court stressed legislature had specifically denounced the carrying of a particular component of a firearm. Otherwise, said the court, confedera might separately carry the components and, after rendezvousing, readily assemble the components for some illicit purpose. Affirming a conviction of carrying a pistol concealed about the defendant's person, the court, in Williams v State (1878) 61 Ga 417 , held that it was no defense that the mainspring of the lock on the defendant's gun was broken, rendering impossible a discharge i the ordinary manner of firing a pistol. The court reasoned that since the statutory term "pistol" was a word in general use by the

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whole population, it had to be understood in its ordinary signification, and any object that would usually be called a pistol in speaking of it is a pistol. An object once a pistol does not cease to be such by becoming temporarily inefficient, said the court; i order and condition may vary from time to time without changing its essential nature or character; its machinery may be more or less perfect; and it may be capped or uncapped, easy or difficult to discharge, or not capable, for the time, of being discharged at all. Still, concluded the court, while it retains the general characteristics and appearance of a pistol, it is a pistol. Affirming a conviction of carrying a concealed weapon, the court, in Crawford v State (1894) 94 Ga 772, 21 SE 992 , found no error in a jury instruction that if the defendant carried a pistol concealed about his person, the fact that it was a broken pisto would make no difference. The court added that assuming arguendo, but by no means holding, that one might lawfully carr concealed on his person a broken and inefficient pistol for the purpose of taking it to a shop and having it repaired, he would certainly violate the law if he added to his original purpose a resolution to suddenly produce and use it in making a hos demonstration against one whom he happened to encounter while he had the pistol so concealed. Here the defendant, whil proceeding along the street with a pistol in his pocket, became engaged in a quarrel and difficulty with other persons during which he suddenly pulled the pistol from his pocket and pointed it at one of them. See also Mathews v Caldwell (1908) 5 Ga App 336, 63 SE 250 , a negligence action on behalf of a minor injured by a toy pistol, wherein the court, citing Williams v State (1878) 61 Ga 417 (this subsection), declared that a pistol is still a pistol even though the mainspring is broken and it cannot be fired in the ordinary manner. The court also cited Crawford v State (1894) 94 Ga 772, 21 SE 992 (this subsection), for the proposition that a broken and inefficient pistol was within the state's statute against carrying firea concealed. The convictions of a husband and wife for unlawful use of weapons in that they knowingly carried concealed pistols or revolvers on or about their persons were affirmed, in People v Halley (1971, 5th Dist) 131 Ill App 2d 1070, 268 NE2d 449 , where witnesses had observed the defendants take out snub–nosed revolvers in a club parking lot in the course of an argument with the club manager, despite a lack of evidence that the guns were in operable condition. To establish a violation of the statute prohibitin carrying of a firearm, said the court, it is sufficient to show that the weapon possessed the outward appearance and characteristics of such pistol, revolver, or other firearm; it is immaterial that such weapon is not loaded, has no firing pin or open barrel, or otherwise inoperable. The court pointed to (1) a statutory definition of a firearm as any device, by whatever name known, th designed to expel a projectile or projectiles by the action of an explosion, expansion of gas, or escape of gas; (2) a strong publi policy to dissuade persons from carrying and brandishing weapons or objects having the appearance or characteristics of firearms and (3) the fact that the incidents in question did not occur during a time of jocular horseplay but, rather, of acrimony, threat, and argument. Under a statute making it a criminal offense for any person to carry a pistol concealed on or about his person, and defining "pistol" as any firearm, loaded or unloaded, 30 inches or less in length, or any firearm, loaded or unloaded, that by its construction appearance conceals it as a firearm, the court, in People v Jiminez (1970) 27 Mich App 633, 183 NW2d 853 (disapproved by People v Huizenga (1989) 176 Mich App 800, 439 NW2d 922 , § 10[b] ), held that the statutory definition did not require the gun to be operable. Thus, the court affirmed a conviction under the statute despite the defendant's argument that no evidence had b entered to show that his loaded gun was operable. Characterizing as meaningless the distinction between unloaded and inoperable firearms, the court, in People v Sanchez (1980) 98 Mich App 562, 296 NW2d 312 , held that an inoperable handgun may be a "pistol" within the meaning of a statute prohibiting the carrying of a concealed pistol. Accordingly, the court affirmed the defendant's conviction even though the parties had stipulated that the weapon involved, a pistol, was not operable. Adopting the view that an object, once a pistol, does not cease to be one by becoming temporarily inefficient, the court, in v State (1911) 99 Miss 579, 55 So 354 ,[FN54 Mitchell ] affirmed a conviction of carrying a concealed pistol. The defendant requested the trial judge to instruct the jury that if the pi alleged to have been carried by the defendant had no hammer or mainspring, it was not a pistol. The trial judge refused and inste gave the state's requested instruction that if the defendant carried concealed a pistol that was defective in that it did not hav mainspring or a hammer, the jury should find the defendant guilty. The appellate court upheld the correctness of the trial judge's actions. CUMULATIVE SUPPLEMENT Cases:

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State was not required to show, in proceeding adjudicating juvenile delinquent based upon his carrying a concealed handgun handgun was operational. Neb. Rev. St. §§ 28–1202(1) , 28–1204(1) . In re Cory P., 7 Neb. App. 397, 584 N.W.2d 820 (1998) . [Top of Section] [END OF SUPPLEMENT] § 11[a] "Dangerous" or "deadly" weapon—View that operability is required for violation—statute violated Operability, at least in the sense of being readily made operable, was held to be a requirement, which was met, for violation of statute prohibiting possession of a "dangerous" or "deadly" weapon in the following cases involving a pistol, revolver, or handgun. Affirming a conviction of feloniously carrying a concealed deadly weapon, the court, in Couch v Commonwealth (1953, Ky) 255 SW2d 478 , rejected the contention that the state had failed to prove that the defendant's pistol was a deadly weapon because the state had shown that the pistol was complete with trigger, cylinder, and so forth and was in condition to fire. Emphasizing that there w evidence that the pistol was defective and could not be fired, the court stated that a pistol is a deadly weapon per se and that the state had made out a case by proving that the defendant had it concealed on or about his person. If the weapon was in such defective condition that it could not be fired, said the court, that was an affirmative defense. Affirming a conviction of carrying concealed a deadly weapon on the defendant's person, the court, in Prince v Commonwealth (1955, Ky) 277 SW2d 470 , held that although a piece might have been missing from the loaded automatic pistol found in the defendant's pocket, there w nothing to show that the missing piece prevented the pistol from being fired. The defendant's sweetheart testified that she had brought the pistol to a certain city for the purpose of having it repaired and that she had left it with the defendant to keep for her while she went to the grocery store. The defendant contended that the evidence failed to show that the pistol was capable of bei fired, but the court replied that the defendant had failed to show by any testimony that the pistol could not be fired. In fact, said court, the (unspecified) evidence clearly shows that the pistol was a deadly weapon. A conviction of carrying a concealed deadly weapon was affirmed, in Mosley v Commonwealth (1964, Ky) 374 SW2d 492 , even though the state had not proved that the defendant's pistol was capable of being fired. The court took the position that if the weapon was in such a defective condition that it could not be fired, the burden was on the defendant to prove that fact as a affirmative defense, which he had failed to do. See State v Rector (1931) 328 Mo 669, 40 SW2d 639 , (§ 14), wherein the statute in question referred to a revolver, gun, or other firearm and then listed a series of weapons other firearms, followed by the words "or other dangerous weapon," and the court construed this language as making a revolver, in character as a firearm, a dangerous weapon per se but recognized that a revolver so completely defective as to be incapable of firing at all would not come within the statutory prohibition. Under a statute prohibiting any person from carrying concealed on or about his person a dangerous or deadly weapon of any kind or description, the court, in State v Baty (1974, Mo App) 511 SW2d 139 , affirmed a conviction of carrying a concealed.22–caliber pistol despite a lack of evidence demonstrating that the gun was operable when the defendant was carrying it. Noting that a pistol had been classified as a dangerous and deadly weapon even when unloaded and that a pistol had been ruled to be a deadly weapon per se, the court concluded that the state had made out a case when it proved that the defendant was carrying a pistol concealed on or about his person. If the weapon was in such a defective condition that it could not be fired, said the court, that fact was a defense to be first fathered and fostered by the defendant. See also Commonwealth v Townsend (1967) 211 Pa Super 135, 235 A2d 461 , wherein the court, without discussing the operability issue, held that a police officer's testimony that he noticed a bulge in the defendant's pocket that proved to be a.38–caliber pistol, loaded and in operable condition, was sufficient to support a verdict of guilty of carrying a concealed dea weapon. § 11[b] "Dangerous" or "deadly" weapon—Statute not violated Operability, at least in the sense of being readily made operable, was held to be a requirement, which was not met, for violation of a statute prohibiting possession of a "dangerous" or "deadly" weapon in the following cases involving a pistol, revolver, or handgun. Reversing a conviction of carrying a concealed deadly weapon, a pistol, the court, in Jarvis v Commonwealth (1947) 306 Ky

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206 SW2d 831 190, , held that the trial judge should have instructed the jury that if the pistol was without a cylinder and could not be loaded or fired, and if the cylinder was not on or about the defendant's person when the offense was charged to have been committed, the defendant should be found not guilty. The defendant testified that he had thrown away the cylinder of the pistol before the remaining part of the pistol was concealed on his person. Adopting the view that a pistol or revolver without an essential part, and consequen incapable of being used as a firearm, was not a deadly weapon within the meaning of the governing statute, the court noted that if the defendant's story was true, the pistol had lost an essential part, without which it was worthless as a weapon. Although recognizing that the essential character of a deadly weapon is not changed by dismemberment if the parts may be easily assembled so as to be effective, the court emphasized that here, according to the defendant, the cylinder had been thrown away, was lost, an was not on or about his person at the time of the alleged offense. The court added that the handle and barrel together constituted only part of a pistol—just as the cylinder was only a part. Surely, said the court, it would not be contended that the defendant would have been guilty of the offense charged if he had retained the cylinder alone. Where all of the evidence showed that the pistol found on the defendant was wholly incapable of being fired, it clearly became th duty of the trial judge to direct the jury to acquit him, held the court, in Bowman v Commonwealth (1949) 309 Ky 414, 217 SW2d 967 , reversing a conviction of carrying a concealed deadly weapon on or about the defendant's person. On the.32–caliber automatic pistol in question, the tip end of the plunger, which was absolutely necessary to produce an explosion of a cartridge, was broken off and could not be made to reach the cap on the cartridge so as to cause the pistol to fire. All of the prosecuting witnesses testified that in that condition the pistol could not be fired. A search of the defendant failed to disclose either the broken off piece from plunger or a complete plunger that might have been readily substituted for the broken and wholly defective one. Also not found on the defendant were any tools or facilities by which he might have repaired the broken plunger. A conviction of carrying a concealed deadly weapon on or about the defendant's person was reversed, in Stevens v Commonwealth (1966, Ky) 406 SW2d 723 , on the ground that since there was sufficient evidence to generate a belief as well as a disbelief that the pistol in question would fire, the trial judge should have given an affirmative defense instruction on the inoperability issue. The defendant testified that th slide or ejector mechanism of the pistol was jammed and that the pistol would not fire in that condition. Police officers testified that the ejector mechanism was jammed, but their testimony was equivocal as to whether the pistol would fire in that condition. However, in order to release the mechanism it was necessary for one of the officers to shove a wire rod down the barrel and eject the cartridge that was jammed in it. The court recognized that if there is sufficient evidence to show that a pistol is incapable of being fired, and that evidence is uncontradicted, it becomes the duty of the trial judge to direct an acquittal. In State v Casto (1906) 119 Mo App 265, 95 SW 961 , the defendant's conviction of carrying a concealed deadly weapon on his person was reversed, where he testified that the pistol was broken, that he had taken it on the night in question to a shop to have it fixed but could not get in, that the mainspring of th pistol was broken, and that it was still in that condition. The court stated that if on the night in question the pistol was not a de weapon because the mainspring was broken, and it could not be used as such, and if the reason for the defendant's having it possession was because he could not find the machinist to repair it, he was not guilty of carrying a concealed deadly weapon within the meaning of the governing statute, and he was entitled to have the jury consider his case from that standpoint. § 11[c] "Dangerous" or "deadly" weapon—View that operability is not required for violation According to the courts in the following revolver cases, operability was not a requirement for violation of a statute prohibitin carrying of a concealed deadly weapon. v Quail (1914) 28 Del 310, 92 A 859 In State , involving an unloaded revolver and a conviction of carrying a concealed deadly weapon, the court stated that a revolver, eve though unloaded or in such a defective condition that it could not be fired, cannot be lawfully carried in Delaware concealed o person. In Papella v State (1915) 29 Del 19, 96 A 198 , the court, relying on State v Quail (1914) 28 Del 310, 92 A 859 (this subsection), instructed the jury that a revolver, even though in such a defective condition that it could not be fired, cannot be lawfully carried concealed on the person. The defendant introduced testimony that the automatic revolver in his pocket at the time of his arrest was defective (in an unspecified way) and could not be discharged. He was nevertheless found guilty of carryin concealed deadly weapon. § 12[a] By previously convicted person—View that operability is required for violation

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Under a weapons statute referring to the offense of carrying by a previously convicted person, the courts, in the following c involving a pistol, revolver, or handgun, expressly or impliedly held that operability was a requirement for violation of the statute and that this requirement had been met. v State (1968, Okla Crim) 443 P2d 120 But see Ray , wherein the court, without disturbing the defendant's conviction of carrying a concealed weapon after a former conviction of felony, nevertheless reduced the defendant's sentence, in the interest of justice, to the time already served and ordered his discharge from the penitentiary. The court expressed "grave doubt" as to whether the defendant's weapon could have been fired, and the court noted that it had never decided whether the offense could be committed by carrying a weapon wholly incapable of being fired. The defendant's.22–caliber high standard automatic pistol contained no clip, and there was no ammunition about his person. Th defendant said that the gun had no firing pin, no clip, and no ammunition, that he was taking it to a man's house who had a catalog of gun parts, and that he intended to have the man order some parts. Although agreeing with the defendant that an essential element of the offense of carrying a firearm after a former conviction of felony is the capability of the weapon to discharge a lethal projectile, the court, in Nelson v State (1984, Okla Crim) 687 P2d 744 , affirmed a conviction of that offense, holding the evidence sufficient for the jury to have reasonably believed that the gun in question was capable of discharging a projectile. The court noted that (1) the pistol was introduced into evidence; (2) a police officer testified that the gun was loaded; (3) the defendant was seen with the gun in his hand; and (4) the defendant fled when he saw the police officer. The circumstances fully support the inference that the weapon in question was a fully operational device capable of discha potentially lethal bullets, held the court, in Bolton v State (1985, Okla Crim) 702 P2d 1040 , affirming a conviction of carrying a firearm after a former conviction of a felony. The defendant approached the proprietor in a parking lot, said that he had a gu "fourteen shooter," and pulled back his jacket revealing the butt of what was described by the proprietor as a.22– or.25–cal automatic pistol in his waistband. The defendant then approached a second man and exchanged words with him, eventually pullin the weapon and discharging it twice into the air. He followed the man to the street, struck him across the face with the gun discharged it a third time. A spent.22–caliber shell casing was ultimately found on the ground where the weapon was fired. The facts that the weapon was never recovered and that no one was actually shot with it were held insufficient to support the defendant's contention that the weapon had not been shown to be a "pistol," which was statutorily defined in part as being capable of discharging a projectile able to cause lethal injury. § 12[b] By previously convicted person—View that operability is not required for violation Under a weapons statute referring to the offense of carrying by a previously convicted person, the court, in the following ca involving a pistol, apparently held that operability was not a requirement for violation of the statute. Affirming a conviction of possession of a pistol after having been convicted of grand larceny, the court, in State v Omo (1967) 199 Kan 167, 428 P2d 768 , rejected the contention that since a pistol was defined by statute as a certain kind of firearm, there had to be some specific showing that the weapon was actually capable of being fired. Although the defendant characterized the pistol as "a rather dog–eared specimen at best," the court declared that a pistol is a deadly weapon per se and that the defendant's pistol had b submitted to the jury for consideration as a firearm. The court added that the fact that the defendant had twice sought to conceal the pistol gave rise to an inference as to its prohibited character. § 12[c] By previously convicted person—General view not at issue under statutory exception Without stating a general view regarding whether operability was required for violation of a statute prohibiting the carrying o handgun by a previously convicted person, the court, under the particular circumstances of the following case, held that th dismantled handgun in question did not come within a statutory exception for carrying a handgun unloaded and in a secure wrapper to a place of repair. Where the defendant was found with a handgun under the front seat of his car and the cylinder for it in a grocery bag in the backseat, and there was testimony that he had experience with guns, that the gun could have been assembled easily, that he had been seen with his arm in the backseat doing something, and that he quickly found the cylinder in the bag when a police officer asked where it was, the court, in Beck v State (1981, Ind App) 414 NE2d 970 , affirmed a conviction of, inter alia, knowingly and unlawfully carrying a handgun without a license and after a prior conviction. The defendant claimed to have come within a statutory exception for carrying a handgun unloaded and in a secure wrapper to a place of repair. However, the court, adopting t

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view that the "secure wrapper" contemplated by the statute must be such as to prevent immediate or ready access to the in capabilities of the weapons carried, stated that it was unpersuaded that a handgun under the front seat of a vehicle with a cylind within easy reach prevents immediate or ready access to the gun. The court also pointed out that the jury could have easily inferre that the defendant, when stopped for speeding, had disassembled the gun and placed the cylinder in the bag. § 13. During commission of crime [Cumulative Supplement] In the following case involving a statute prescribing an enhanced penalty for the commission of certain crimes while armed w firearm, the court recognized that operability was a requirement for violation of the statute but held that a contrary jury instructio was not prejudicial in the absence of evidence that the handgun in question was inoperable. In People v Gaines (1980, 1st Dist) 103 Cal App 3d 89, 162 Cal Rptr 827 [FN55 ] (disapproved by People v Nelums, 31 Cal 3d 355, 182 Cal Rptr 515, 644 P2d 201 , § 48) and (superseded by statute on other grounds as stated in People v Villalobos (2nd Dist) 181 Cal App 3d 310, 226 Cal Rptr 410 , op withdrawn by order of ct), involving a statute prescribing an enhanced penalty for the commission of certain crimes while armed with a firearm, the court held that the trial judge had erred in instructing the jury that the firearm need not be operable. Th court also adopted the view that to require affirmative proof of operability would allow the defendant to frustrate the statutory purpose by getting rid of the gun or concealing it. The presumption or inference of operability is eminently reasonable, said the court, for it may logically be assumed that a gun used or held in such a manner as though it were operable and capable of inflic injury or death was in fact operable, and persons who possess the specialized instruments of violence are ordinarily persons wh intend to use them. However, since no evidence had been offered by the defendant or anyone to show that the handgun used i robbery was inoperable, the court added that the trial judge was under no duty to instruct the jury that the firearm had to be operable in order to violate the statute. Regarding the trial judge's erroneous instruction as not prejudicial under the circumstances, the court affirmed the conviction. CUMULATIVE SUPPLEMENT Cases: Agent's test firing of handgun with blank cartridge was sufficient to establish that weapon was capable of firing a projectile, and thus a firearm, as required to support conviction for carrying firearm in connection with drug trafficking charge. 18 U.S.C.A. § 921(a)(3) . U.S. v. Allen, 235 F.3d 482 (10th Cir. 2000) . [Top of Section] [END OF SUPPLEMENT] § 14. In automobile in which intoxicating liquor is being transported Apparently taking the view that operability—at least in the sense of being readily made operable—was a requirement for violation of a statute that proscribed carrying a revolver in an automobile in which intoxicating liquor was being transported, the court in the following case held that the rusty condition of the revolver in question did not preclude a violation under the particula circumstances. Unless a revolver was so completely defective as to be incapable of firing at all, which condition was not established here, it was still a revolver, held the court, in State v Rector (1931) 328 Mo 669, 40 SW2d 639 ,[FN56 ] although reversing on other grounds a conviction of carrying a revolver in an automobile in which intoxicating liquor was being transported. When the pistol was found at the scene of a collision, it was dusty and rusty and the cartridge cylinder would not revolve (it was loaded with t shells). On being asked whether this prevented the weapon from being used as a firearm, the sheriff, who was not qualified as expert on firearms, answered that he wouldn't think it could have been used as a weapon and that he "wouldn't want to have starte out for anybody with it." The court noted, however, that the cylinder did turn when the revolver was produced at the trial and that the sheriff was not asked whether anything had been done to correct the operating defect while the revolver had remained in custody. The statute in question referred to a revolver, gun, or other firearm and then listed a series of weapons other than firearms, followed by the words "or other dangerous weapon." The court construed this language as making a revolver, in its character

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firearm, a dangerous weapon per se. In recognizing that a revolver so completely defective as to be incapable of firing at all would not come within the statutory prohibition, the court cautioned that the statute would cover a revolver with some mere imperfection or maladjustment that might have been corrected at the time with means at hand or readily obtainable. § 15. Into jail Operability was not a requirement for violation of a statute prohibiting anyone from knowingly bringing a firearm into a jail, held the court, in the following case involving a defective revolver. Affirming a conviction of knowingly bringing a firearm into a jail, the court, in People v Carter (1981, 2nd Dist) 117 Cal App 3d 546, 172 Cal Rptr 838 , held that operability was not a requirement for violation of the governing statute. The gun taken from the defendant wa a.22–caliber revolver. An officer who had not tested the weapon testified that in his opinion it was inoperable because the ham would not strike the firing pin. Another officer, who had tested the gun, testified that its hammer and firing pin were functional. Both officers agreed that the fact that the cylinder was loose did not render the gun inoperable. The clear intent of the legis according to the court, was to maintain the safety and security of the state's jails and road camps by totally proscribing th introduction therein of any firearms, deadly weapons, or explosives. Concluding that it would be a most unreasonable interpretation of the statute that would declare a detected smuggler immune from prosecution if there existed a flaw in the weapon's firepower, the court stated that it could not subject inmates, visitors, or guards to risks created by gun wielding prisoners. It requires imagination, continued the court, to picture the perils created by escaping convicts who are armed with what appear to be functional firearms, or the bloody riots that often ensue when such efforts prove only partially successful. § 16. Use—generally The inoperability of a pistol did not exempt it from an unlawful use of weapons statute,[FN57 ] according to the court in the following case. In People v White (1975, 1st Dist) 33 Ill App 3d 523, 338 NE2d 81 (disagreed with on other grounds by People v Brown (3d Dist) 137 Ill App 3d 453, 92 Ill Dec 214, 484 NE2d 945 ), the court, although holding that the state had failed to prove the essential element of concealment involved in the instant case, recognized that the fact that the pistol in question was inoperable did not exempt it from an unlawful use of weapons statute. A judgment revoking the defendant's probation was affirmed on other grounds. § 17. Of "dangerous" or "deadly" weapon [Cumulative Supplement] Operability was held to be a requirement, which was not met, for violation of a statute creating an offense involving the use of deadly weapon in the following case, where some of the guns in question were revolvers. But see State v Tilley (1978, Mo App) 569 SW2d 346 , (§ 18[a] ), wherein the court, affirming a conviction of armed criminal action, defined by statute as the commission of any felony by, with, or through the use, assistance, or aid of a dangerous or d weapon, held that it was not a condition precedent to a conviction for armed criminal action that the state prove that a gun was loaded and operative, since to so require would virtually render the statute unenforceable. Similarly, see State v Chunn (1982, Mo App) 641 SW2d 829 , involving a prosecution for armed criminal action, wherein the court, in deciding the admissibility of evidence that the.22–caliber revolver used in a robbery attempt was loaded and opera remarked that a gun is considered a deadly weapon regardless of whether it is loaded or operable. Reversing a conviction of criminal use of a firearm in the first degree, the court, in People v Amato (1984, 2d Dept) 99 App Div 2d 495, 470 NYS2d 441 , held that (1) the crime required the use of a deadly weapon; (2) in order for a gun to be considered deadly, it must be proven to have been loaded and operable; and (3) there was no proof that a loaded and operable firearm was used. The defendant an companions entered a jewelry store. The two companions pointed black guns (of an unspecified kind) at the two victims a announced a robbery. One of the defendant's companions herded the victims into a back room while the other started taking jewelry. When a police officer kicked in the front door, the robbers took the victims as hostages and attempted to leave the store. The defendant had his arm around the neck of one of the victims, a 74–year–old woman. The robbers were soon captured, frisked and found unarmed. Three blue.38–caliber revolvers were found in the back of the store, but no black guns were ever found. Th court noted that there was no evidence connecting the blue guns to the defendant or his companions and no other proof that th robbers had used loaded and operable weapons.

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CUMULATIVE SUPPLEMENT Cases: A firearm does not have to be operable in order for the defendant to be guilty of use of a deadly weapon to commit a felony. Neb. Rev. St. §§ 28–1201 , 28–1205 . State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002) . [Top of Section] [END OF SUPPLEMENT] § 18[a] During commission of crime—View that operability is not required for violation Under a statute referring to the use of a firearm during the commission of a crime, the courts, in the following cases involving pistol, revolver, or handgun, took the position that operability was not required for violation of the statute. Affirming a conviction of using a firearm to commit a felony (18 U.S.C.A. § 924(c) ), the court, in United States v Harris (1986, CA9 Wash) 792 F2d 866, 20 Fed Rules Evid Serv 1177 , held that the statute did not require that a weapon be operable. Witnesses to a bank robbery saw the defendant carrying what appeared to be a.38 or.45 automatic pistol, but the gun was never produced at trial. Concluding that the government had nevertheless proved its case, the court pointed out that 18 U.S.C.A. § 921(a)(3) defined "firearm" to include any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosive, as well as the frame or receiver of such a weapon. In People v Hayden (1973, 3rd Dist) 30 Cal App 3d 446, 106 Cal Rptr 348 (disapproved on other grounds by People v Rist, 16 Cal 3d 211, 127 Cal Rptr 457, 545 P2d 833 ), the court, affirming a conviction under a statute that prescribed an additional term of imprisonment for a person who uses a firearm in the commission of certain crimes, held that there was no implication in the statute that would require the state, as part of its burden of proof, to establish the weapon's operability. The revolver allegedly used by the defendant was not found. The explained that the legislature had sought to deter both physical harm and conduct that produces fear of harm. The fear may aris either from a gun that really shoots or from one that is designed to shoot and gives the appearance of shooting capability, said t court; persons at gunpoint have no stomach for inquiry; danger radiates not only from the weapon but from the defensive reaction of others; and in response to the lawbreaker's weapon, operable or not, a victim or law officer may resort to a firearm—as one of the victims did in the instant case. Noting further that a demand for affirmative proof of operability would allow the defendan frustrate the statute by getting rid of the gun or concealing it, the court concluded that it is enough that the state produce evidence of a gun designed to shoot and giving the appearance of shooting capability. Affirming a conviction of using a firearm in the commission of a felony, the court, in People v Jackson (1979, 2nd Dist) 92 Cal App 3d 899, 155 Cal Rptr 305 , declared that the statute creating that offense applies even if the evidence conclusively proves that the firearm was inoperable, s long as there is evidence—as there was in the instant case—of a gun that is designed to shoot and that gives the appearance shooting capability. The defendant committed a robbery by pointing a.38–caliber revolver at the victim and demanding money. The revolver had a defect in the linkage between the trigger and the hammer and could not be fired simply by pulling the trigger, although it could be fired by striking the hammer directly. Without deciding whether the revolver was technically inoperable, th court held that operability was not an express or implied requirement of the statute. The legislative intent, according to the court, was to deter both physical harm and conduct that produces fear of harm. Reasoning that this purpose would be frustrated inoperability defense, the court pointed out that a victim placed in fear cannot be expected to inquire into the condition of the gun and that the danger remains that the reaction by the victim or some third person to the appearance of the gun will cause harm to befall someone.[FN58 ] v Pelzer (1982) 230 Kan 780, 640 P2d 1261 In State , the court held that a statute providing for a mandatory minimum sentence on conviction of certain crimes in the commission o which the defendant used any firearm would be construed to require the imposition of a mandatory sentence regardless of whether the firearm is operable. Thus, the court reversed, on the state's appeal, the sentencing judge's refusal to impose the mandato minimum sentence where the defendant had used an inoperable handgun in a robbery. Test–firing revealed that the handgun could not fire a bullet because of a mechanical defect in the firing mechanism; the firing pin would not strike the cartridge when the

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trigger was pulled. Finding unhelpful both the legislative history of the statute and the conflicting decisions from other jurisdictions, the court, noting the absence of a statutory definition of a "firearm," adopted a judicial definition of that term as a object having the design or capacity to propel a projectile by force of an explosion, gas, or other combustion. Emphasizing alternatives contained in that definition, the court stated that (1) a firearm is to be determined by its design or by its capacity to propel a projectile; (2) the trial judge had found that the gun in question was designed to propel a projectile; (3) any handgun that is designed to propel a projectile is a firearm; (4) any present disrepair that might render a gun inoperable does not make it any firearm; and (5) if the legislature had intended to exclude from the term "firearm" those firearms that are inoperable, it could have so stated. For Maryland cases, see § 18[b] . Affirming a conviction of armed criminal action, defined by statute as the commission of any felony by, with, or through th assistance, or aid of a dangerous or deadly weapon, the court, in State v Tilley (1978, Mo App) 569 SW2d 346 , held that it was not a condition precedent to a conviction for armed criminal action that the state prove that a gun was loaded and operative, since to so require would virtually render the statute unenforceable. The defendant entered a motel lobby when the night auditor an security guard were on duty. He walked up to the auditor, pulled a revolver from his side, and said, "You have got three seconds. The auditor opened the cash register, but the defendant fled without the money when the security guard appeared. The guard pursued the defendant and eventually caught him, but the defendant no longer had a gun in his possession. Proof of the use of a gun in the commission of a felony is sufficient evidence on which to base a conviction of armed criminal action, said the court, because a gun in and of itself is considered a dangerous and deadly weapon whether it is operative as a firearm or not. See also State v Chunn (1982, Mo App) 641 SW2d 829 , involving a prosecution for armed criminal action, wherein the court, in deciding the admissibility of evidence that the.22–caliber revolver used in a robbery attempt was loaded and operable, remarke that a gun is considered a deadly weapon regardless of whether it is loaded or operable. Affirming the imposition of a mandatory sentence on a conviction of armed robbery, under a statute requiring a mandatory sentence on a showing of the use or possession of a firearm in the commission of certain crimes, the court, in State v Gantt (1986) 101 NJ 573, 503 A2d 849 , held that proof of a gun's operability was not inherent in a statutory definition of "firearm" and therefore was not an essentia element in the imposition of a mandatory sentence. A "firearm" was statutorily defined as including any handgun, rifle, shotg machine gun, automatic or semiautomatic rifle, or any gun, device, or instrument in the nature of a weapon from which may be fired or ejected any solid projectile ball, slug, pellet, missile, or bullet, or any gas, vapor, or other noxious thing, by means of cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances. The defendant, whos handgun was never found, contended that this definition required a showing of operability, which the state had never made However, the court construed the latter part of the definition as applying only to a gun, device, or instrument other than th specifically enumerated, since the use of the disjunctive "or" in the "or any gun" clause indicated that the "may be fired" language did not modify the list of enumerated weapons, all of which were specifically defined in other statutory sections in terms design—not their operability. Stating that it could find no evidence in the language or purpose of the mandatory sentencing statute to suggest that its framers had contemplated a ballistics test as part of the sentencing process, the court added that such interpretation would effectively eliminate the application of the statute in all cases in which the defendant has discarded or secreted a weapon. Although requiring proof that a gun was fully operational at the time of the crime would be the most accurate gauge actual danger, said the court, determining whether the instrument was designed to deliver lethal force is nonetheless an extre accurate gauge of potential danger. Refusing to invoke the fiction of a legal presumption of operability, the court commented tha such a rule would invariably invite assertions of inoperability by defendants hopeful of gaining some advantage in the murky waters of law characteristic of rebuttable presumptions and shifting burdens of proof. The issue of so–called "inoperability," said the court, should enter the case only if it bears on the question of design—only if and when substantial evidence is introduced, from whatever source it may come, tending to show either that the object is of innocuous design or that it has undergone such substantial alteration or mutilation that the instrument has completely and permanently lost the characteristics of a real gun. Although the weapon used in the armed robbery was never recovered, the victim testified that the defendant's unidentified accomplice had a small handgun in his hand and that he saw the barrel and handle of the pistol. The court reasoned that since operability was n essential element for the state to prove, and since there was no evidence tending to disprove the authenticity of the gun, there was sufficient evidence to support a finding that the instrument met the definition of a handgun—an object designed to fire a deadly projectile from the hand—and was therefore a firearm for sentencing purposes. § 18[b] During commission of crime—Maryland cases

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In the following case, the most recent of the pertinent Maryland cases, which involved a statute prohibiting the use of a handgun i the commission of a crime of violence, the court held that operability was a requirement for violation of the statute and th requirement had not been met under the particular circumstances. Reversing the defendant's conviction of, inter alia, unlawful use of a handgun in the commission of a crime of violence, the court, v State (1987) 70 Md App 616, 522 A2d 401 in Wright , held that the trial judge had erred in refusing to instruct the jury, as requested by the defendant, that the term "handgun" means any pistol, revolver, or other firearm that is, inter alia, "operable or easily made operable." The court adopted the views that handgun must be a "firearm" and that a firearm must propel a missile by gunpowder or some such similar explosive or be r converted into a device capable of so propelling a missile. Even a weapon designed and constructed as a firearm must actually capable of discharging a missile, declared the court. The defendant had verbally threatened to kill a man and had pulled the trigger of a gun in an apparent attempt to carry out that threat, but the gun had merely clicked and not fired. The court noted that one could imagine any number of rational explanations for the failure of the gun to fire, one of which was that the gun was simply inoperable. Although such an inference is by no means a required one, said the court, the jury, if given the requested instruction, could fairly have entertained a reasonable doubt as to whether the gun was operable and thus as to whether it was a "firearm." The c distinguished Couplin v State (1977) 37 Md App 567, 378 A2d 197 (this subsection), and York v State (1983) 56 Md App 222, 467 A2d 552 (this subsection), on the ground that they involved the sufficiency of the evidence to sustain a conviction rather than the sufficiency of the evidence to generate enough of a question as to the operability of the weapon to require the jury to consider that point. In the following Maryland cases the courts expressed somewhat divergent views as to the need to prove operability under prohibiting the use of a handgun in the commission of a crime, or a crime of violence, but held that a violation of the statu established or supportable under the particular circumstances. Upholding the trial judge's refusal to instruct the jury that a statute prohibiting the use of a handgun in the commission of a cr applied only to operable handguns, the court, in White v State (1974) 23 Md App 151, 326 A2d 219 , affirmed a conviction of that offense. Noting that the legislature's declaration of policy in the statute was to discourage the carrying of handguns on the streets and in public by persons inclined to use them in criminal activity, the court reasoned that to require proof that a handgun used in the commission of a crime was operable would make it impossible to convict unless the weapon were discovered and admitt evidence; even then only its ability to be discharged at the time the crime was committed would be conclusive. In Couplin v State (1977) 37 Md App 567, 378 A2d 197 [FN59 ] (disapproved on other grounds by State v Ferrell, 313 Md 291, 545 A2d 653 ), a conviction of using a handgun in the commission of a crime of violence was affirmed where the alleged victim of a robbe testified that the defendant had stuck a small pistol in her neck, even though the gun was never recovered or proved to have b fireable. The court rejected the defense contention that the state had to prove that the gun was capable of firing a projectile b explosive propellant. Noting that proof of the use of a weapon may rest on extrinsic evidence as to the nature of the weapon and that the governing statute did not require a firing of the weapon as by an element of the crime, the court concluded that in the absence of the recovery of the weapon, there was no requirement that it be fired simply to provide evidence of its fireability. Under a statute prohibiting the use of a handgun in the commission of a crime of violence and providing that a "handgun" included any pistol, revolver, or other firearm capable of being concealed on the person, the court, in York v State (1983) 56 Md App 222, 467 A2d 552 ,[FN60 ] cert den 299 Md 137, 472 A2d 1000 , held that although a gun that, at the time of its use, is not a firearm because not explosive of projectiles and not readily convertible to that purpose is not a handgun, the defendant's ch "Saturday night special".38窶田aliber revolver, with a minor mechanical defect correctable in about a minute by the use of simple tools, was a handgun the use of which violated the statute. In enacting the statute, the legislature had noted that a substantial increase in the number of persons killed or injured in violent crimes in the state was traceable in large part to the carrying o handguns on the streets and public ways by persons inclined to use them in criminal activities. From this policy declaration the court reasoned that there was an operability requirement because the potential for major harm existed only when the weapon, at the time of the offense, was usable as a handgun. The revolver in question had been dropped and damaged in such a way that the cylinder would not revolve. This, in turn, meant that the weapon could not be fired by the exertion of ordinary pressure on the trigger, although someone with "unusual strength" might have been able to fire it. Despite a police report that had classified t revolver as "inoperable," a police firearms expert testified that by using a hammer and a screwdriver or a fingernail file he cou restore the weapon to operable condition in about a minute. Moreover, noted the court, the two police officers who had characterized the weapon as "inoperable" had both in effect qualified their opinions in that regard. One said that the gun wouldn't fire to a "95% degree of certainty" but that it might be fired if someone took both hands and tried to force the action. The other officer believed that the gun could be fired by someone with perhaps twice his strength. Concluding that the jury could have foun that the defendant's gun met the criterion of being explosive of projectiles when used, the court commented that it did not t

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legislature, in its concern for the protection of citizens against handguns used in crimes, had intended for a weapon to be exclud from the handgun category because of nice calculations of percentages or the relative strengths of potential users. Affirming a conviction of unlawful use of a handgun in the commission of a crime of violence, the court, in Brown v State (1985) 64 Md App 324, 494 A2d 999 , cert den 304 Md 296, 498 A2d 1183 , held without merit a defense contention that the state had failed to prove that the weapon used was an operable firearm. The weapon used by the defendant was held to have bee adequately described by a police officer as a "detective type special".38–caliber revolver of the same type that he carried. T "handgun" was statutorily defined as including any pistol, revolver, or other firearm capable of being concealed on the person. T court explained that York v State (1983) 56 Md App 222, 467 A2d 552 (this subsection), did not contradict or detract from Couplin v State (1977) 37 Md App 567, 378 A2d 197 (this subsection). According to the Brown court, York simply said that to be a handgun for purposes of the offense in question weapon must have the characteristics implicit in the statutory definition of a "handgun" and that if the evidence shows that th weapon did not have those characteristics at the time it was used, it is not a "handgun." Couplin permits the proof of th characteristics to be by inference when more direct, empirical evidence is unavailable, said the court, and that was the case here. § 19. Exhibition Under a statute prohibiting the exhibition of a pistol in a rude, angry, and threatening manner, the court in the following case decided that operability was not a requirement for violation of the statute. Reasoning that since a pistol was per se by statutory designation a deadly weapon through its inclusion in the general term "firearms," its exhibition in the manner charged constituted the offense defined by the statute, the court, in State v Morris (1915) 263 Mo 339, 172 SW 603 , affirmed a conviction of exhibiting a pistol in a rude, angry, and threatening manner. The court stated that it was no defense that the weapon brandished or unlawfully displayed was not in an efficient condition or could not be discharged. See also State v Overshon (1975, Mo App) 528 SW2d 142 , involving a prosecution for exhibiting a deadly weapon in a threatening manner, wherein although the defendant conceded that the revolver in question was a deadly weapon, the cou nevertheless remarked that it was immaterial whether the revolver was unloaded or otherwise incapable of being discharged if it had the appearance and characteristics of a revolver. § 20. Pointing—generally [Cumulative Supplement] The following pistol cases support the view that operability is not required for a prima facie case of violation of a statute prohibiting, generally,[FN61 ] the pointing of weapons. See also Dilworth v State (1980, Okla Crim) 611 P2d 256 , wherein the court, affirming a conviction of pointing a firearm, refused to allow the defense to raise on appeal the alleged failure of the state to prove that the pistol introduced into evidence capable of firing a projectile, where the state had attempted to introduce testimony that the pistol had been test–fired, the defense had objected on the ground that whether the pistol would shoot was irrelevant and immaterial, and the trial judge had sustai objection. We cannot, said the court, allow the defense now to object to the state's failure to introduce such evidence when th defense precluded the state from doing so. In Re B. (1980, Okla Crim) 617 P2d 234 , involving a juvenile delinquency petition based on the pointing of a pistol at another person, the court answered affirmatively state's reserved question whether it could establish a prima facie case of pointing a firearm without proving that the weapon w capable of firing. The arresting officer, at whom the pistol had been pointed, testified that there was a live round in the chamber, but he did not disassemble the pistol to determine either the presence or absence of a firing pin. The juvenile testified that the weapon had no firing pin. Because the governing statute prohibited the pointing of a weapon "whether loaded or not," the concluded that the state's position was meritorious. Although another statute defined a pistol as, in part, a firearm capable discharging a projectile, the court pointed out that the definitional statute was expressly limited to the provisions of a certain firearms act and had never been intended to apply to other portions of the penal code. Affirming a conviction of feloniously pointing a weapon, the court, in Jennings v State (1982, Okla Crim) 643 P2d 643 , rejected a defense contention that the state had failed to sustain its burden of proof by not showing that the pistol in question w capable of discharging a lethal projectile. The court held that the introduction into evidence of the weapon used, a.38–caliber pistol, along with the arresting officer's testimony that the gun was loaded at the time of the incident and the defendant's testimony that h had intended to kill some dogs with the gun, was sufficient to show that the firearm came within the statutory definition of a pistol

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as any firearm capable of discharging a projectile composed of any material that may reasonably be expected to cause lethal injury. CUMULATIVE SUPPLEMENT Cases: Defendant's conduct of firing blank rounds from starter pistol at his neighbors constituted "discharging" a firearm, for purposes statute setting forth offense of discharging a firearm within 500 feet of a dwelling or other building in use; while statute set fo specific exemptions from its application, including discharge of blank cartridges for theatrical, athletic, ceremonial purposes, fact that legislature set out specific exemptions meant that it implicitly intended not to exempt from statute the firing of blanks from firearm in manner in which defendant achieved it. M.G.L.A. c. 148, § 39 , c. 269, § 12E . Com. v. Stephens, 67 Mass. App. Ct. 906, 857 N.E.2d 504 (2006) . [Top of Section] [END OF SUPPLEMENT] § 21. By previously convicted person For purposes of the statutory offense of pointing a weapon after former felony convictions, operability was regarded as not required in the following case involving a pistol that allegedly would not work. A conviction of pointing a weapon after former felony convictions was affirmed, in Wimberly v State (1985, Okla Crim) 698 P2d 27 , despite the defendant's claim that the pistol in question wouldn't work. He testified that it "wouldn't stay cocked, you try to pull the trigger the trigger would come back and it wouldn't snap." A statute made it unlawful to willfully or without lawful cause point a shotgun, rifle, pistol, or any deadly weapon, whether loaded or unloaded, at any person. Another section of the statute defined pistol as any firearm capable of discharging a projectile composed of any material that may reasonably be expected to be able to cause lethal injury. Holding that the state had met its burden of proving that the defendant's pistol met the statutory definition, th court expressed the view that the legislature was not concerned with whether at the moment of the offense the weapon woul projectile, because the "whether loaded or not" language made it clear that the offense is completed even if no projectiles were in the weapon. Rather, continued the court, the words "capable of discharging a projectile" should be interpreted to mean that th firearm is designed to discharge the projectiles by the means described. § 22. Other or unspecified offense [Cumulative Supplement] In the following case involving a pistol but an unspecified offense, the court, although holding that the statute in question ha violated, recognized that inoperability—in the sense of not being readily made operable—would be a defense if established. Any pistol or revolver meeting the stated dimensions and commonly understood as the article it purports itself to be is sufficien sustain a prosecution under the Uniform Firearms Act (UFA), held the court, in Commonwealth v Lee (1973) 224 Pa Super 17, 302 A2d 474 , affirming a conviction of an unspecified offense under the UFA, but adding that any such pistol or revolver would continue t qualify as a "firearm" unless and until evidence was presented by either side establishing the inoperability of the gun involved. Only then, said the court, when the issue of inoperability is thus introduced into evidence, must the state prove that the gun could be made operable by the exercise of reasonable repairs. Distinguishing Commonwealth v Layton (1972) 220 Pa Super 435, 288 A2d 908 , revd Commonwealth v Layton (1973) 452 Pa 495, 307 A2d 843 , (§ 7[b] ), wherein the state, in introducing a gun into evidence, had stipulated that the gun was not operable, the present court stressed that in Lee no such issue of inoperability was ever raised and no evidence to establish inoperability was ever presented. See also Commonwealth v Grab (1945) 54 Pa D & C 233 , involving an unloaded pistol, wherein the court stated that a gun with the barrel plugged, although incapable of being discharged, would nevertheless be a "firearm" within the meaning of th Uniform Firearms Act because simply removing the plug would render it capable of being discharged. The court defined a firearm as a pistol or revolver that is capable of discharging a cartridge or that can be rendered capable of discharging a cartridge by a simple operation.

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CUMULATIVE SUPPLEMENT Cases: Plastic toy dart gun was "imitation weapon," and thus its sale was prohibited, where revolver was silver and black, it did not possess orange stripe along both sides of its barrel, its barrel was less than one inch in diameter and was not plugged at its end, and it was in general shape of actual revolver, shot projectiles, and could easily have been mistaken for actual revolver. McKinney's General Business Law § 871 , subd. 2. Gift & Luggage Outlet, Inc. v. People, 194 Misc. 2d 582, 756 N.Y.S.2d 717 (Sup 2003) . Defendant who was charged in felony complaint with possessing loaded.22 caliber handgun on his person could be charged wi lesser included offense of attempted criminal possession of weapon in fourth degree, a misdemeanor, where weapon was loaded but inoperable due to defective spring, and where defendant was alleged to have made two statements, one admitting possession o gun and other stating that he had gun for his protection. Pleadings were sufficient to create set of facts indicating intent to po operable firearm that failed only due to weapon's inoperability. People v Todd (1992, City Crim Ct) 582 NYS2d 352 . [Top of Section] [END OF SUPPLEMENT] III. Rifle § 23. Possession—of sawed–off or short–barreled rifle[FN62 ] [Cumulative Supplement] The violation of a statute creating a criminal offense involving the possession of a sawed–off or short–barreled rifle or firearm w held established or supportable on a variety of grounds in the following cases, even though the rifle in question was broke dismantled, or missing a part. In Sipes v United States (1963, CA8 Mo) 321 F2d 174, 63-2 USTC ¶15518 , cert den 375 US 913, 11 L Ed 2d 150, 84 S Ct 208 and (disapproved on other grounds by Haynes v United States, 390 US 85, 19 L. Ed. 2d 923, 88 S Ct 722, 68–1 USTC ¶15802, 21 AFTR 2d 1781 ), the court, affirming a conviction of possession of a short–barreled rifle in violation of 26 U.S.C.A. § 5851 , held that the weapon taken from the defendant qualified as a rifle and as a firearm even though the defendant testified that it had no firing pin. Declining to decide whether a weapon without a firing pin is a firearm, the court stressed that (1) the defendant h conceded that a nail in the weapon at the time of trial was the firing pin; (2) there was testimony that the weapon at the trial was in the same condition as it had been in when taken from the defendant; and (3) the weapon had been successfully fired in that condition. Where an officer observed a sawed–off rifle lying on a car seat next to the defendant, who had the missing bolt for the rifle in pocket, the court, in People v Stinson (1970, 4th Dist) 8 Cal App 3d 497, 87 Cal Rptr 537 , affirmed a conviction of possession of a sawed–off rifle. Relying on People v Guyette (1964, 5th Dist) 231 Cal App 2d 460, 41 Cal Rptr 875 , (§ 35[a] ), the court held that the fact that the weapon was not assembled for immediate use at the time of its discovery did not make its possession legal. Reversing the dismissal of an information charging the defendant with possession of a sawed–off shotgun, defined by statute include a sawed–off rifle, the court, in People v Favalora (1974, 1st Dist) 42 Cal App 3d 988, 117 Cal Rptr 291 , held that the prohibition applied to a sawed–off, bolt–action,.22–caliber rifle that had no bolt or firing pin, where a deputy sheriff later procured a bolt from a sporting goods store, placed it in the rifle, and fired a.22–caliber cartridge properly. The statute provided in part that any person who possesses any instrument or weapon of the kind commonly known as a sawed–off shotgun is guilty of a felon Finding nothing in the statute that required the gun to be operable, the court remarked that if the legislature had intended to requir operability, it could readily have so provided—especially since the statute had been amended in other respects without adding such a requirement. The court also pointed out that the statute did not prohibit the possession of a sawed–off shotgun as such, but rath "any instrument or weapon" of the sawed–off shotgun "kind." From this language the court reasoned that if the rifle in question was not a "weapon" because inoperable, it was an "instrument" of the prohibited "kind"—a kind ordinarily used for criminal improper purposes. A victim of a robbery, burglary, assault, or rape is equally frightened and subdued by being threatened inoperable sawed–off shotgun as an operable one, said the court, and it is doubtful whether anyone confronted by a sawed–o shotgun would dare question its possessor about its operability. Finding a clear legislative intent to prohibit possession of objects

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the likely criminal use of which appears from the character of the weapon alone, the court declared that a sawed–off shotgun has no legitimate purpose whether with or without a firing pin, that it is contraband, and that its possession is illegal per se. The distinguished People v Jackson (1968, 2nd Dist) 266 Cal App 2d 341, 72 Cal Rptr 162 , (§ 7[d] ), as having been decided under a different statutory section that did not contain the "of the kind" language construed in the instant case. Moreover, continued the court, a subsequent amendment of the statutory section involved in Jackson had essentially nullified Jackson's effect by codifying a contrary intent. Affirming a conviction of possession of a prohibited weapon, a short–barreled firearm, the court, in Campbell v State (1982, Tex App Amarillo) 633 SW2d 592 , recognized that if a short–barreled firearm is incapable of firing, the manner in which it is possessed is not unlawful, but held t proof that the weapon was a short–barreled firearm and that the defendant was in possession of it creates a prima facie case for t state, which need not show that the weapon was capable of firing unless that issue is raised by the evidence. The state showed that the weapon in question was a short–barreled.22–caliber rifle with an overall length of less than 26 inches and that when found in the defendant's possession it contained a live round of ammunition in it. This evidence was held sufficient to establish the state' prima facie case, the court stressing that no issue concerning whether the weapon could be fired had been raised by the evidence. The court distinguished Thornton v State (1975, Tex Crim) 529 SW2d 539 , (§ 35[a] ), on the ground that the weapon in that case was disassembled when confiscated from the defendant. CUMULATIVE SUPPLEMENT Cases: In prosecution for misconduct with weapons in connection with defendant's possession of sawed–off rifle, state was not required to prove that weapon was not in permanently inoperable condition; rather, possible inoperable status was matter of affirmative defense. State v Berryman (1994, Ariz App) 875 P2d 850, 160 Ariz Adv Rep 57 . [Top of Section] [END OF SUPPLEMENT] § 24. By previously convicted person [Cumulative Supplement] The courts in the following rifle cases held that operability was not an element of the offense of being a convicted felon in possession of a firearm. Without discussing the issue, the court, in United States v Sanza (1980, DC Md) 519 F Supp 26 , held that whether the rifles in question were operable was irrelevant and immaterial since operability of the guns is not an element of the offense of possession of firearms by a previously convicted felon in violation of 18 U.S.C.A. Appx. § 1202(a)(1). A petition for habeas corpus by one wh had been convicted of that offense was accordingly denied. A conviction of being a convicted felon in possession of firearms was affirmed, in State v Rogers (1986, La App 2d Cir) 494 So 2d 1251 , cert den (La) 499 So 2d 83 , even though a witness testified that the defendant had traded to him an 80–year–old antique Winchester rifle and that the witness did not know whether the rifle "worked" because he had never fired it. The court, noting that the governing statute did not define the term "firearm" and did not exclude antique firearms, and that the statute had previously been held not to require that the firearm be loaded at the time of possession, concluded that it similarly did not require that the firearm possessed by the defendant be operable. Operability was held no longer to be an element of the offense of possession of a firearm by a felon, in State v Nile (1989, Me) 557 A2d 950 , the court affirming the defendant's conviction of that offense even though the rifle used was not introduced into evidence, where the statutory definition of a "firearm" had been amended in 1983 from a weapon that "will" expel a projectile by the action o explosive to a weapon that "is designed to" expel a projectile by the action of an explosive. The court noted that the statement of fact submitted with the amendment declared that its purpose was to remove the operability requirement. For purposes of the offense of having a weapon while under disability due to prior convictions, the state was held or recognized a not being required to produce "hard evidence" of operability in the following case, because the introduction into evidence of

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weapons at issue, including a rifle, was, in itself, probative evidence of their operability.US United States v Perez (1990, CA5 Tex) 897 F2d 751 , cert den (US) 112 L Ed 2d 141, 111 S Ct 177 La State v Hill (1990, La App 5th Cir) 562 So 2d 12 , cert den (La) 567 So 2d 99 A state prisoner's contention that he was entitled to habeas corpus relief from his conviction of having a weapon while unde disability (due to prior convictions) because the prosecution had not produced "hard evidence" (test results, a firing demonstration, or the like) indicating that the weapons at issue, including a.22–caliber rifle, were operable was rejected, in Booker v Engle (1981, Ohio law) SD Ohio) 517 F Supp 558 (applying , the court holding that the prosecution was not required to produce that kind of evidence in order to obtain a conviction. Relying on State v Adkins (1973, Columbiana Co) 40 Ohio App 2d 473, 69 Ohio Ops 2d 416, 320 NE2d 308 , (§ 28[a] ), app dismd, the court held that the introduction into evidence of the weapons at issue was, in itself, probative evidence of their operability from which the jury could make its own determination regarding satisfaction of the statutory requirement that the petitioner have "firearm," which term was statutorily defined as a weapon capable of expelling projectiles. The court noted that the jury, which had been instructed according to the statutory language, apparently had found the weapons to be firearms from examining them. CUMULATIVE SUPPLEMENT Cases: Proof of operability was required for conviction of defendant for criminal possession (possession by one having prior conviction for felony or serious offense) of rifle or shotgun. People v Longshore (1995) 86 NY2d 851, 633 NYS2d 475, 657 NE2d 496 . Evidence was sufficient to establish that rifle found in defendant's gun cabinet was designed, made, and intended to expel a projectile by means of an explosion, and that was all the Commonwealth needed prove to establish that rifle was a "firearm" meaning of statute proscribing being a felon in possession of a firearm, whether or not defendant possessed requisite skill to e needed repair to render rifle immediately operable. West's V.S.A. § 18.2–308.2. Armstrong v. Com., 562 S.E.2d 139 (Va. 2002) . [Top of Section] [END OF SUPPLEMENT] § 25. Carrying The rifle in the following case was held not a dangerous weapon per se in the absence of evidence of operability, under a statu making it a criminal offense to carry a dangerous weapon in a vehicle. Affirming on several grounds an order that had quashed an information charging the defendant with carrying a dangerous weapon in a vehicle, the court, in People v Nixon (1968) 13 Mich App 684, 164 NW2d 775 , held, inter alia, that due to the failure of the record to establish that the M–1 rifle, as found in the defendant's possession, was capable of firing the cartridge found in the chamber, the court was unable to pronounce the rifle a dangerous weapon per se. If the rifle and cartridge had been admitted evidence, added the court, such a determination could have been made. § 26. Parading or threatening with firearms Operability was explicitly or implicitly held not an element of the offenses of parading or threatening with firearms in the following rifle cases. Operability was held no longer to be an element of the offense of criminal threatening with a firearm, in State v Nile (1989, Me) 557 A2d 950 , the court affirming the defendant's conviction of that offense even though the rifle used was not introduced into evidence, where the statutory definition of a "firearm" had been amended in 1983 from a weapon that "will" expel a projectile by the action o explosive to a weapon that "is designed to" expel a projectile by the action of an explosive. The court noted that the statement of fact submitted with the amendment declared that its purpose was to remove the operability requirement. In Commonwealth v Murphy (1896) 166 Mass 171, 44 NE 138 , ordinary breech–loading rifles that had been altered by boring in the barrel near the breech and by filing down the firing pins so as to make them immovable, in which condition the rifles could

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not discharge a missile by means of gunpowder or any other explosive, were nevertheless held to be "firearms" within the meaning of a statute prohibiting parading by unauthorized bodies of men with firearms. Affirming such a conviction, the court pointed out that (1) although the men who carried these weapons could not actually fire them, it would be generally supposed that they could; (2) with the exception of the danger of being actually shot down, all of the evils that the statute had been intended to remedy s existed in the parade in which the defendant took part; (3) the defendant's rifle originally had been an effective firearm; and (4) the fact that the firearm was disabled did not change its name. § 27. Other or unspecified offense [Cumulative Supplement] In the following cases involving various offenses, other than those treated in §§ 23 - 26 , related to the transfer or transport of, or dealing in, firearms, the courts held that the statutes involved had been violated even though the rifles in question, at the time o the offenses, had been unassembled or otherwise inoperable, where there was evidence that they could have been readily restored to operability. The operability of a weapon is legally relevant to the definition of a "firearm" under 18 U.S.C.A. § 921(a)(3) , but the weapon need not be operational in its condition as transported in foreign commerce, so long as it "may readily be converted" to that statu said the court, in United States v Wilson (1983, CA4 Va) 721 F2d 967, 14 Fed Rules Evid Serv 823 , affirming, with some modifications on other grounds, the defendant's convictions of multiple federal firearms offenses: conspiracy, under 18 U.S.C.A. § 371 , to export firearms illegally in violation of 18 U.S.C.A. §§ 922(a)(3) , 922(e) , 924(b) , and 22 U.S.C.A. § 2778 ; export of firearms without a license, 22 U.S.C.A. § 2778(b)(2) , (c) ; delivery of firearms to a common carrier for shipment in foreign commerce without written notice to the carrier, 18 U.S.C.A. § 922(e) ; and transport of firearms in foreign commerce with intent to commit a felony—that is, the export of firearms without a license, 18 U.S.C.A. § 924(b) The defendant claimed that one of the weapons in question, an M–16 rifle, was inoperable. Although a former owner of the M testified that he believed that it was an inoperable presentation piece, the government had proffered evidence that the M–16 cou easily have been restored to operational condition, and there was testimony that the defendant had fired it in Libya. The co concluded that the jury had adequate evidence before it to decide the issue of operability and could properly have inferred th defendant would not have paid $10,000 for a useless weapon. Reversing the dismissal of indictment counts charging one defendant with being a dealer in short–barrel rifles in violation of U.S.C.A. § 5861(a) 26 and charging other defendants with aiding and abetting the dealer's transfer of short–barrel rifles in violation of 26 U.S.C.A. § 5845 , the court, in United States v Drasen (1988, CA7 Ill) 845 F2d 731 , cert den (US) 102 L Ed 2d 250, 109 S Ct 262 , held that complete kits containing unassembled and never previously assembled constituent parts of short–barrel rifles were short–barrel rifles within the meaning of those statutory provisions. The term "rifle" was statutorily defined as a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and including any such weapon that may be readily restored to fire a fixed cartridge. The latter clause was added by an amendment to the original definition. The court emphasized that the kits did not contain miscellaneous parts that an ordinary person could not easily sort out and assemble into a functioning rifle; rather, the kits were composed of major rifle sections already assembled, leaving only a few of the assembled sections to be quickly and easily slipped into position so as to be ready to fire. Mor Commissioner of Internal Revenue had issued a ruling that the possession or control of sufficient parts to assemble an operat firearm, and the transfer of sufficient parts to assemble an operative firearm, constituted the transfer of a firearm subject to th transfer tax. Because this ruling preceded the amendment adding the "readily restored" clause to the statutory definition of a rifle, the court applied the presumption that the legislature, in amending a statute, adopts a prior administrative interpretation of it. Thus the court refused to accept the defendants' proposed meaning of the "readily restored" clause as imposing a requirement fo conviction that the parts of a rifle must have been assembled into a functioning rifle at some time even if they were pre disassembled. Stating that whether the parts are to be assembled or reassembled is of no practical consequence since a functional rifle is the result in either event, the court added that Congress would have had no reason to draw the distinction, and create loophole, advocated by the defendants. The principle of lenient construction does not require a court to ignore the obvious intention of the legislature in enacting a statute, said the court. As to the defense contention that when Congress had intended a firearms statute to encompass a parts kit, it had used such words as "combination of parts" in the pertinent definitions, the court replied th

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since Congress was here concerned only with short–barrel rifles, a clause encompassing any combination of parts for a rifle would have been inappropriate because it would have included parts for unregulated rifles. CUMULATIVE SUPPLEMENT Cases: Rifle police saw defendant holding was "firearm," for purposes of felon in possession of firearm and simultaneous possession o drugs and firearm, regardless that rifle covered in mud and had mud in barrel, that it was rusty, and that officers testified that they did not know whether rifle would shoot at all; rifle was still designed to expel projectile by action of explosion. A.C.A. § 5–1–102(6) . Hunt v. State, 128 S.W.3d 820 (Ark. 2003) . Even if operability was required to convict defendant of unlawful use of weapon by felon, officer testified that rifle without trigg was capable of being fired, and had been fired by him by inserting object up under trigger mechanism and pushing it. People v White (1993, 4th Dist) 253 Ill App 3d 1097, 194 Ill Dec 267, 627 NE2d 383 , reh den (Feb 10, 1994). Trial court properly convicted defendant of use of deadly weapon in commission of felony, where defendant brandished sawed–off.22 caliber rifle during robbery, notwithstanding old gun's poor condition, since statute defines "deadly weapon" as firearm, loaded or unloaded, that is capable of shooting. State v Williams (1989, Mo App) 784 SW2d 276 . See State v Elrose (1994, App Div) 277 NJ Super 548, 649 A2d 1351 , § 3[c] . [Top of Section] [END OF SUPPLEMENT] IV. Shotgun A. Of Standard Length[FN63 ] § 28[a] Possession—generally or without license, permit, or registration[FN64 ]—Statute violated [Cumulative Supplement] Under the particular circumstances of the following cases involving shotguns of apparently standard length, the courts hel established or supportable a violation of a statute prohibiting the possession of a firearm or of an unregistered shotgun, where the was evidence that the shotgun was operable or could be readily made operable. Affirming a conviction of possessing an unregistered shotgun in violation of 26 U.S.C.A. § 5861(d) , the court, in United States v Woods (1977, CA5 Ala) 560 F2d 660 , cert den 435 US 906, 55 L Ed 2d 497, 98 S Ct 1452 , held that the firearm in question came within the definition of a shotgun in 26 U.S.C.A. § 5845(d) , which included the language "and shall include any such weapon which may be readily restored to fire a fixed shotgun shell." The court reasoned that the fact that the weapon was in two pieces when found was immaterial because only a minimum of effort was required to make it operable. The court noted that an officer had demonstrated at trial the ease with which the weapon could be connected. Affirming a conviction of illegal possession and control of a firearm, a 410–gauge shotgun, the court, in State v Adkins (1973, Columbiana Co) 40 Ohio App 2d 473, 69 Ohio Ops 2d 416, 320 NE2d 308 , app dismd, held that the introduction of a firearm into evidence is probative evidence of its operability and that, under the circumstances of this case, the introduction into evidence of the shotgun was sufficient evidence of its operability to warrant submission of the issue to the jury for decision. The defendan questioned whether people of average intelligence on a jury could determine beyond a reasonable doubt that the gun was operable by simply handling and looking at it when no evidence had been introduced by a ballistics expert that it could be fired. However, the court noted that the gun, which appeared to be in good operable condition, had been introduced into evidence without objection. CUMULATIVE SUPPLEMENT Cases: See Mangum v State (1996) 342 Md 392, 676 A2d 80 § 9[a] .

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Defendant was properly convicted of unlawful possession of shotgun without purchaser identification card, possession with purpose to use it unlawfully, and aggravated assault with shotgun, even though barrel was stuffed with wooden dowel and gun lacked firing pin, where (1) shotgun was originally designed to be operable; (2) shotgun was not so old and deteriorated characteristics of real gun; and (3) victim testified that he felt barrel on neck and defendant threatened to "blow his head off," which caused him to fear for his life. State v Orlando (1993, NJ Super Ct App Div) 634 A2d 1039 . Under municipal ordinance proscribing possession of loaded shotgun in public place, possession by three defendants of three parts to operable shotgun, and possession by one defendant of operable shell for shotgun, was violation of ordinance, notwithstanding that shotgun was in three pieces when seized. People v Walston (1990, City Crim Ct) 556 NYS2d 197 . [Top of Section] [END OF SUPPLEMENT] § 28[b] Possession—generally or without license, permit, or registration[FN* ]—Statute not violated A violation of a weapons possession statute was held not established under the particular circumstances of the following ca involving an apparently standard–length shotgun, the court reasoning in part that the gun could not have been readily resto operability. In United States v Thompson (1962, ND Cal) 202 F Supp 503 [FN65 ] (superseded by statute as stated in United States v Drasen (CA7 Ill) 845 F2d 731 , (§ 27), cert den (US) 102 L. Ed. 2d 250, 109 S Ct 262 ), the court ordered the dismissal of an indictment charging the defendants with having illegal possession of an unregistered firearm in violation of 26 U.S.C.A. § 5841 , where the shotgun in question had no firing pin in it when it was seized by police officers and no firing pin for the gun was found on or about the defendants when they were arrested. Noting that a determination of what is and what is not a "firearm" depends great part on whether the particular object will propel a shot through explosive energy, the court reasoned that the shotgun in question did not meet this test because a shotgun without a firing pin cannot be fired without the aid of external objects. The cour also stressed that unlike another statute, § 5848 did not contain the language "or any part or parts of such weapon" and that Congress easily could have added such words when § 5848 was amended on two occasions. Distinguishing the situation in which a gun was disassembled but could be immediately put together and in operating condition, the court pointed out that here no firing pin had been found in the defendants' possession or in the area of their arrest. The court added that criminal statutes must be construed strictly against the prosecution and liberally in favor of the accused. § 29. Of "dangerous" or "deadly" weapon Noting facts that indicated that the defendant could have readily assembled the disassembled shotgun in question, which w apparently of standard length, the court in the following case held that the defendant had violated a statute prohibiting the willful and unlawful possession of a dangerous weapon in a certain area. A conviction of willful and unlawful possession of a dangerous weapon in an area in which a state of emergency had been declared was affirmed, in State v Dobbins (1971) 277 NC 484, 178 SE2d 449 , even though the butt and barrel of the 12–gauge shotgun in question were found disassembled on the floor of the defendant's car, along with a shell for the shotgun lying on the backseat of the car and other such shells stuck in the defendant's shoe tops. The court emphasized that the two parts of the shotgun and the shell were all within the defendant's easy reach and under his immediate power and control. The court also noted that the police office who found the shotgun had fitted the barrel onto the butt at the scene of the crime. § 30. By previously convicted person [Cumulative Supplement] Holding established or supportable a violation of a statute prohibiting the possession of a shotgun or firearm by a previousl convicted person, the courts, in the following cases involving shotguns of apparently standard length, took the position that proof of operability was not required—at least for a prima facie case.La State v Hill (1990, La App 5th Cir) 562 So 2d 12 , cert den (La) 567 So 2d 99

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Rejecting the contention that there was no proof of the defendant's possession of a shotgun because it was inoperable at the time of its seizure, the court, in United States v Pleasant (1974, CA8 Mo) 489 F2d 1028 , cert den 416 US 989, 40 L Ed 2d 768, 94 S Ct 2398 , affirmed a conviction of being a convicted felon in possession of a firearm—a shotgun—that was traveling in and affecting interstate commerce in violation of 18 U.S.C.A. Appx. § 1202(a)(1). The statute, in § 1202(c)(3), defined a firearm as a weapon that is able to, or is designed to, or may readily be converted to expel a projectile. Emphasizing that Congress had thereby specifically stated that the statute applied to inoperable as well as operable firearms, the court held erroneous the argument government had to prove that the gun could immediately have been made operable and that the defendant possessed the pieces necessary to make it so.[FN66 ] There was held to be no requirement that a firearm be serviceable, under a statute prohibiting a convicted felon from subse possessing a firearm or offensive weapon, in State v Pinckney (1981, Iowa) 306 NW2d 726 , the court affirming a conviction of that offense but remanding the case on other grounds for resentencing. An inoperable shotgun without a firing pin was admitted into evidence, but the court noted that the gun had been designed to fire a projectile. A statutory amendment provided that "offensive weapon" did not include any firearm that was unserviceable by reason of being unable to discharge a shot by means of an explosive or was incapable of being readily restored to a firing condition. The court, however, explained that the amendment was expressly applicable to certain sections of the statute other than the section regarding convicted felons; from this the co discerned a legislative intent that convicted felons were not to possess, receive, or transport firearms, whether serviceab unserviceable. The court also reasoned that the amendment had merely removed unserviceable firearms from the definition "offensive weapons," that "firearms" and "offensive weapons" are not synonymous, and that this distinction had been made obvious by the alternate reference to "a firearm or offensive weapon" in the section under which the defendant had been charged. The state need not show the weapon to have been operable until evidence of its inoperability has been introduced, held the court, in v Baldwin (1977) 34 NC App 307, 237 SE2d 881 State , affirming a conviction of possession of a firearm by a convicted felon. A police officer's examination of the interior of a ve operated by the defendant revealed a cartridge belt and a 12–gauge sawed–off shotgun. Shotgun shells were found in the defendant's pocket. Although there was testimony that the shotgun had been examined by firearms agents to determine whether it was operable, the state failed to introduce the results of that examination. The defendant offered no evidence. Distinguishing situation in which a gun possessed by the defendant is shown to have been inoperable, the court stressed that the record was wholly devoid of any evidence that the gun was operable or inoperable. A state prisoner's contention that he was entitled to habeas corpus relief from his conviction of having a weapon while unde disability (due to prior convictions) because the prosecution had not produced "hard evidence" (test results, a firing demonstration, or the like) indicating that the weapons at issue, including a shotgun, were operable was rejected, in Booker v Engle (1981, SD Ohio) 517 F Supp 558 (applying Ohio law) , the court holding that the prosecution was not required to produce that kind of evidence in order to obtain a conviction. Relying on State v Adkins (1973, Columbiana Co) 40 Ohio App 2d 473, 69 Ohio Ops 2d 416, 320 NE2d 308 , (§ 28[a] ), app dismd, the court held that the introduction into evidence of the weapons at issue was, in itself, probative evidence of their operability from which the jury could make its own determination regarding satisfaction of the statutory requirement that the petitioner have "firearm," which term was statutorily defined as a weapon capable of expelling projectiles. The court noted that the jury, which had been instructed according to the statutory language, apparently had found the weapons to be firearms from examining them. CUMULATIVE SUPPLEMENT Cases: See People v Longshore (1995) 86 NY2d 851, 633 NYS2d 475, 657 NE2d 496 § 24 . [Top of Section] [END OF SUPPLEMENT] § 31. During commission of crime Proof of operability was held not required for a prima facie case of violation of a statute prohibiting the possession of a firearm during the commission of a felony in the following case involving a shotgun of apparently standard length.

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Affirming a conviction of possession of a firearm during the commission of a felony, the court, in People v Berberich (1981) 105 Mich App 421, 306 NW2d 536 , rejected the defendant's contention that the factual basis of his conviction was insufficient because the trial judge had no determined the operational capability of the shotgun in question. Adopting the view that the prosecution need not present p operability as an element of the prima facie case in a felony–firearm prosecution, the court added that a shotgun was obviou "firearm" within the (unspecified) statutory definition. § 32. Carrying A violation of a statute prohibiting the carrying of a concealed firearm was held supportable in the following case involving a shotgun of apparently standard length, where there was evidence that the disassembled shotgun could have been readily re operability. Reversing the dismissal of an information charging the defendant with carrying a concealed firearm, a 20–gauge shotgun, on person, the court, in State v Ware (1971, Fla App D2) 253 So 2d 145 , held that it was a jury question whether the disassembled shotgun could have been, in the words of the statute defining a firearm, readily converted to expel a projectile by the action explosive. The defendant had the shotgun broken down into two separate pieces. He had the barrel of the gun under his left arm inside his shirt, and it extended down into his pants. The stock of the gun was inside the front of his shirt, and the shells for it were in his right pants pocket. The court noted the arresting officer's testimony that the defendant could have removed the gun from beneath his clothing, assembled it for use, and fired it in under 30 seconds. § 33. Use Under a statute prescribing an enhanced penalty for using a firearm in the commission of certain crimes, the court, in the followi case involving a shotgun of apparently standard length, held that operability was not a requirement for violation of the statute. Holding without merit a defense contention that the trial judge had erred in instructing the jury that the firearm used need not operable in order to be in violation of a statute prescribing an enhanced penalty for using a firearm in the commission of certa crimes, the court, in People v Reza (1981, 2nd Dist) 121 Cal App 3d 129, 175 Cal Rptr 126 , affirmed a conviction entailing an enhanced penalty for such use. As introduced as an exhibit at trial, the shotgun's hammer was broken and could not be cocked without a mechanical tool to bring it back into the firing position. The officer who recovered the weapon recalled that it was cocked when he found it, but he did not remember whether the hammer was broken at that time. He found no tool at the scen cocking a broken hammer. Finding persuasive the reasoning in People v Jackson (1979, 2nd Dist) 92 Cal App 3d 899, 155 Cal Rptr 305 , (§ 18[a] ), the court adopted the view that the statute applies even if the evidence proves that the firearm was inoperable, so long as th evidence of a gun that is designed to shoot and that gives the appearance of shooting capability. The court declined to follow contrary decision in People v Gaines (1980, 1st Dist) 103 Cal App 3d 89, 162 Cal Rptr 827 , (§ 13). § 34. Exhibition In the following case involving an apparently standard–length shotgun, the court held that the state need not prove operability in order to convict of exhibiting a deadly weapon in a rude, angry, and threatening manner. Affirming a conviction of exhibiting a deadly weapon in a rude, angry, and threatening manner, the court, in State v Larkin (1974, Mo App) 512 SW2d 911 , held that it was unnecessary for the state to prove that the.12–gauge loaded shotgun involved was capable of being discharged. The court adopted the reasoning that since the statute mentioned certain weapons as being deadly, including a "firearm," and since a shotgun is a firearm, a shotgun is a deadly weapon, and proof of deadliness must be shown only when the weapon used is not one mentioned in the statute. The court distinguished State v Rector (1931) 328 Mo 669, 40 SW2d 639 , (§ 14), on the ground that it involved a different statute with different language. The court added that the holding in Rector was not helpful to the present defendant in any event. B. Sawed–off or Short–barreled § 35[a] Possession[FN67 ]—View that operability is required for violation—statute violated

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[Cumulative Supplement] Apparently taking the position that operability—at least in the sense of readily being made operable—was a requirement for violation of the weapons possession statutes in question, the courts in the following cases involving a sawed–off or short–bar shotgun held that this requirement had been met under the particular circumstances. Emphasizing that it had taken only about an hour for a firearms enforcement officer to replace the (unspecified) missing and broken parts of a sawed–off shotgun obtained by another officer from the defendant, the court, in United States v Catanzaro (1973, DC Conn) 368 F Supp 450 , held that the gun in its broken and incomplete condition was nevertheless a "firearm" and therefore denied a defense motion dismiss an indictment for knowingly possessing a certain firearm—a sawed–off shotgun—that had not been registered (26 U.S.C.A. § 5861(d) ) and that lacked a serial number (26 U.S.C.A. § 5861(i) ). The court also stressed that the definition of a U.S.C.A. § 5845(d) shotgun in 26 included any such weapon that "may be readily restored to fire" a fixed shotgun shell. Although a consulting engineer with experience in the manufacture of firearms testified that he had been unable to obtain replacements for the missing and broken pa from several gunsmiths, the court pointed out that (1) a firearms officer had been able to identify the parts by consulting a sta firearms reference work; (2) another firearms agent, armed with that knowledge, had been able to obtain parts for the gun manufacturer (Smith and Wesson) that had purchased the inventory of the original manufacturer (Noble) when the latter had gone out of business; (3) the missing parts had cost less than $15; and (4) Smith and Wesson salesmen had generally informed gun dealers that Noble parts would be provided by Smith and Wesson. Denying a defense motion to quash an indictment for unlawful possession of a firearm under 26 U.S.C.A. §§ 5848 , 5851 , and 5861 , the court, in United States v Cosey (1965, ED La) 244 F Supp 100 , held that a sawed–off shotgun found with four shells but no firing pin was a "firearm," where a government agent later successfully test–fired the gun by substituting a small wire nail 5848 for the missing pin. Section (1) defined a "firearm" in part as a shotgun having a barrel or barrels of less than 18 inches in length or any other weapon, excep pistol or revolver, from which a shot is discharged by an explosive. Noting that a shotgun by its very nature is designed to propel shot through explosive energy, the court reasoned that the inclusion of a shotgun as a prohibited firearm in the statute was contingent on the phrase "from which a shot is discharged by an explosive." According to the court, the phrase obviously had inserted to define "any other weapon." The court distinguished United States v Thompson (1962, ND Cal) 202 F Supp 503 , (§ 28[b] ), on the grounds that (1) in Thompson there was no evidence that the court or the agent who test–fired the weapon was aware that an ordinary wire nail, accessible and available to almost anyone, could be effectively substituted for the firing pin by mere insertion in the opening where the pin is normally found; (2) no shells were found in the vicinity of the weapon in Thompson; and (3) in present case an agent had demonstrated to the court that he could arm the shotgun in a matter of seconds by inserting a nail for firing pin. The fact that a necessary part of the firing mechanism was missing from the weapon is immaterial, said the cou considering that a firing pin can be easily removed, replaced, and substituted for by a small nail or tack. Concluding that t temporarily inoperable instrument could be made to fire a shotgun shell with minimum effort, time, and ingenuity, the court adde that the purpose of the statute would be frustrated or defeated if the absence of a firing pin were held to preclude a shotgun from being a firearm under the statute. In United States v Janik (1983, CA7 Ill) 723 F2d 537 (disapproved on other grounds by Henderson v United States, 476 US 321, 90 L. Ed. 2d 299, 106 S Ct 1871 ), the court, although reversing on other grounds the defendant's conviction of possessing two unregistered guns, a submachine gun and a sawed–off shotgun, in violation of 26 U.S.C.A. § 5861(d) , acknowledged the existence of a requirement that the guns be capable of being operated and held that this requirement had been met. As to the shotgun, which had been test–fired by the Bureau of Alcohol, Tobacco, and Firearms, the court held that the statute did not require that its bore be smooth in the sense of being fre from dirt, so long as the bore had not been rifled to impart spin to the projectile on its way out of the barrel. Unspecified evidence, including unspecified statements attributed to the defendant by government witnesses, was held suffic establish at least a prima facie case that the shotgun in question was operable, in United States v Priest (1979, CA10 Colo) 594 F2d 1383 , cert den 444 US 847, 62 L Ed 2d 61, 100 S Ct 95 , the court affirming a conviction of, inter alia, illegal possession of a sawed–off shotgun under 26 U.S.C.A. § 5861(d) The court noted that a shotgun was rather broadly defined in 26 U.S.C.A. § 5681(d) as including any weapon that "may be readily restored to fire a fixed shotgun shell." Finding the defendant guilty of possessing an unregistered firearm in violation of 26 U.S.C.A. § 5861(d) , the court, in United States v Barno (1972, DC Dist Col) 340 F Supp 1326

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, stated that when, as here, a sawed–off shotgun is subject to being readily restored to an operable condition within the meaning of U.S.C.A. § 5845(d) 26 , possession of such a weapon is a violation of law. The court relied on expert testimony that although the shotgun was not operable, it could be rendered operable within 15 minutes by inserting a firing pin that could be improvised from the use of a ordinary nail of the desired thickness. The expert further testified that the firing pin is one of the elements of a shotgun that is m likely to wear out and be replaced and that such replacements are available either from the manufacturer or from gunsmiths. Characterizing as "nugatory" a defense contention that no crime had been committed because the sawed–off shotgun found defendant's possession (in a suitcase) was broken down into its three component parts at the time of its discovery and therefore was not ready for immediate use, the court, in People v Guyette (1964, 5th Dist) 231 Cal App 2d 460, 41 Cal Rptr 875 , affirmed a conviction of possession of a sawed–off shotgun. Stressing evidence that the gun could be assembled and used in a matter of seconds, the court explained that possession of a sawed–off shotgun was forbidden by statute because the chief use for such a weapon was to rob a bank or commit a similar crime. The court adopted the views that a deadly weapon does not cease to be such by becoming temporarily inefficient and that its essential character is not changed by dismemberment if the parts may be e assembled so as to be effective. Reversing an order that had dismissed a charge of possession of a dangerous weapon, the court, in People v Vigil (1988, Colo) 758 P2d 670, 81 ALR4th 737 , held that the trial judge had erred in ruling as a matter of law that the presently inoperable shotgun seized from the glov compartment of the defendant's car was not a "short shotgun" within the meaning of a statute that made it a felony to knowing possess a dangerous weapon and defined "dangerous weapon" as including a short shotgun. When taken from the defendant's car the gun was missing the firing pin and retaining pin, so that it could not be fired without putting a firing pin or its equivalent, such as a small nail, into the receiver of the weapon. This insertion and firing took an expert witness about 2 seconds to accomplish. I took the witness about 30 seconds to add a retaining pin and a spring; although not necessary for the firing mechanism, these kept the firing pin from falling out when the barrel was raised any significant amount from horizontal. Describing the legislative intent as being to prohibit the knowing possession of certain weapons that present a grave threat to human life and safety, the cour reasoned that it would severely undermine the efficacy of the statute to hold that by removal and concealment of an essential part that can be readily replaced, or by slightly damaging the weapon, a machine gun, short shotgun, or short rifle loses its character as a dangerous weapon. Therefore, concluded the court, such a weapon continues to fall within the ambit of the statutory definition of a dangerous weapon when it can be made operable with the addition of a readily replaceable part or the accomplishment of a quickly effected repair. The court directed that on remand the trier of fact, in determining whether the inoperable weapon w dangerous one, should weigh all of the attendant factors and circumstances, including the changes that had to be made in the weapon, the time required to make them, and the parts that had to be inserted. A conviction of knowingly possessing a sawed–off shotgun was affirmed, in People v Theobald (1976, 3d Dist) 43 Ill App 3d 897, 1 Ill Dec 925, 356 NE2d 1258 , the court holding that disassembly was not a defense and stating that a sawed–off shotgun does not cease to be such by b temporarily dismembered if the parts are lying side by side and may be easily reassembled. The defendant's disassembled sawed–off shotgun was found in a paper sack under the seat of a car in which he was riding. A statute prohibited the sal manufacture, purchase, possession, or carrying of, inter alia, any shotgun with a barrel less than 18 inches in length. Another section of the statute exempted from the prohibition of machine guns those machine guns that were "broken down in a nonfunctioning state or not immediately accessible." The court stressed that the statutory language carefully limited "nonfunctioning" exemption to the manufacturer who is transporting machine guns pursuant to an authorized sale and that nowhere was the exemption made applicable to sawed–off shotguns. By exempting possession or transportation of certain weapons if those weapons are broken down, reasoned the court, the legislature clearly intended that possession of other weapons is not exempted from criminal liability where such weapons are temporarily in a nonfunctioning state. The court also pointed to the more seve penalty for the sawed–off shotgun offense (a felony) than that for the machine gun offense (a misdemeanor) as further indication that possession of a sawed–off shotgun was not exempted from criminal liability merely because the weapon was temp disassembled. Surveying similar situations under firearms statutes, the court observed that courts of other states had determined that temporary malfunctioning does not categorize an item as other than a deadly weapon if an effective weapon may be rapi obtained merely by easily assembling parts, making a slight repair, replacement, or adjustment, or inserting a clip or magazine. The court distinguished People v Coburn (1975, 1st Dist) 25 Ill App 3d 542, 323 NE2d 559 , (§ 35[d] ), on the grounds that the defendant there had been shown to possess only the stock of a shotgun, that a barrel was found in another part of the basement which the defendant was arrested, and that there was no evidence that the barrel and stock were parts of the same weapon. In People v Hill (1989) 433 Mich 464, 446 NW2d 140 , the court, reversing the dismissal of a charge of unlawful possession of a short–barreled shotgun, declared that temporarily inoperable firearms that can be made operable within a reasonable time

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within the purview of the statutes governing the use and possession of firearms. The two defendants appeared to be together at scene of a fight, and each possessed one of the two component parts of the same short–barreled shotgun. These parts, according to a police officer, could have been attached in about 2 seconds. Noting that the legislature had recognized the extreme danger presented by short–barreled shotguns and had expressly outlawed their possession, the court refused to apply a construction of statute that would undermine that policy by allowing the criminal element to break down a firearm and move about freely with society without the threat of criminal prosecution. Thus, said the court, the presence of two different components of the same firearm in the possession of two persons in proximity, when the two components comprise the essential parts of one proscrib firearm, provides a sufficient basis for a fact finder to conclude that it is intended that each of the persons has sufficient control of the assembled firearm to amount to constructive and joint possession of it. Under a statute prohibiting the possession of weapons of mass death and destruction and including sawed–off shotguns in the list of such weapons, the fact that a sawed–off shotgun had been disassembled by the time it was found by police officers was held not to lessen its quality as a weapon of mass death and destruction, in State v Fennell (1989) 95 NC App 140, 382 SE2d 231 , the court affirming a conviction of possession of such a weapon. Although recognizing that devices listed in the statute lose their statu weapons of mass death and destruction once they are found to be totally inoperable and incapable of being readily made operable, the court decided that the defendant bears the initial burden of producing evidence of inoperability. The court stressed that defendant had offered no evidence that the weapon was inoperable but had merely raised the possibility that it was incapable of being fired. Simply raising the issue of potential inoperability, said the court, is not sufficient to shift the burden of proof to the state. A conviction of unlawful possession of a short–barrel firearm was affirmed, in Thornton v State (1975, Tex Crim) 529 SW2d 539 ,[FN68 ] the court emphasizing that although the shotgun in question was disassembled when the defendant was carrying it on his person, it could be readily and quickly reassembled, was loaded, and could be fired when the stock and barrel were connected. A polic officer noticed the barrel protruding from the defendant's right back pocket. He then found the stock in the defendant's belt under his shirt. There was a shell in the barrel and another in the defendant's pocket. The officer testified that it took him "about a second, two seconds, half a second" to put the stock and barrel together so that the gun would shoot. CUMULATIVE SUPPLEMENT Cases: In prosecution for possession of short–barreled shotgun, evidence was sufficient to establish statutory requisite that weapon operable or could readily be made operable where state offered testimony of police officer charged with maintaining police armo that when he received weapon it was so rusty that it was "frozen closed," but that, after he applied penetrating oil, he was able t break weapon open, load it, and fire it. Making weapon operable appeared to involve no special knowledge or great expen Moreover, though record did not indicate how long oil had to remain on weapon before it could be broken open, even if oil had to be left on weapon for several days, it could still be said that weapon could "readily be made operable"; its frozen condition was only temporary and did not alter its character as type of weapon proscribed by statute. Dampier v. State, 596 So. 2d 515 (Fla. Dist. Ct. App. 2d Dist. 1992) . [Top of Section] [END OF SUPPLEMENT] § 35[b] Possession[FN* ]—Statute not violated [Cumulative Supplement] In the following cases involving a sawed–off or short–barreled shotgun, operability was regarded, or apparently regarded, requirement for violation of the weapons possession statute in question, and that requirement was expressly or impliedly held not to have been met under the particular circumstances. Under a statute providing that no person who has been convicted of committing or attempting to commit a crime of violence sha own a pistol or have one in his possession or under his control, the court, in Williams v State (1981, Ala App) 400 So 2d 427, 37 ALR4th 1174 , cert den (Ala) 400 So 2d 430 , reversed the defendant's conviction and held that the parts of a disassembled 16–gauge shotgun found in his possession did

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constitute a "pistol." On searching the defendant, the police found the forearm piece of a shotgun in his left coat pocket and t receiver from a shotgun in his right coat pocket. The state's witnesses clearly indicated that the two pieces could not fire even when placed together without the barrel, which was in the sole possession of the defendant's companion. The barrel was 12 1/2 or 12 inches long. The court pointed to, inter alia, the statutory definition of a pistol as any firearm with a barrel less than 12 inches i length and a dictionary definition of a pistol as a short firearm held and fired with one hand. Reversing a conviction of possession of a prohibited weapon, a sawed–off shotgun, the court, in Washington v United States (1985, Dist Col App) 498 A2d 247 , held that the trial judge had erred in refusing to instruct the jury that in order to convict the defendant of that crime, the jury would have to find that the evidence established that the shotgun was operable. No shotgun was ever recovered, and the court acknowledged that this made proof of operability more difficult but added that proof could be by circumstantial evidence. The court also pointed to a statutory definition of a "firearm" as any weapon that will expel a projectile or projectiles by the action of an explosive. CUMULATIVE SUPPLEMENT Cases: In prosecution for possession of sawed–off shotgun, trial court committed reversible error in refusing defendant's request to include in its instruction to jury defining offensive weapon that offensive weapon must be operable at time offense was committed. U statute, offensive weapon does not include any firearm which is unserviceable by reason of being able to discharge shot by means of explosive and is incapable of being readily restored to condition, and there was factual question whether gun was unserviceable and was uncapable of being restored to firing condition, in that police officer who examined shotgun testified it appeared to be missing bolt handle and magazine, and another officer testified in order to operate shotgun, bolt handle, which was missing, must be closed. State v Key (1991, Iowa App) 467 NW2d 583 . [Top of Section] [END OF SUPPLEMENT] § 35[c] Possession[FN* ]—View that operability is not required for violation [Cumulative Supplement] The courts in the following cases involving sawed–off or short–barreled shotguns held that operability was not a requiremen violation of the weapons possession statutes in question. See also Commonwealth v Brimley (1985) 19 Mass App 978, 474 NE2d 1148 , wherein the court, affirming a conviction of possession of a sawed–off shotgun because, inter alia, the evidence that the shotgun had been tested and had discharged a shot routine and uncontested, commented that the assumption that capability of discharging a shot was an element of the offense "dubious." Although noting that such capability was part of a statutory definition of a firearm, the court pointed out that the defendant had not been charged under that section of the statute but under one in which the word "shotgun" presumably carri ordinary dictionary signification. A damaged or malfunctioning shotgun having a barrel less than 18 inches might arguab encompassed by the section under which the defendant was charged, added the court. The operability of the weapon was immaterial, held the court, in Gerdes v State (1982, Minn) 319 NW2d 710 , affirming a conviction of possession of a short–barreled shotgun. The governing statute prohibited the ownership, possession, or operation of a machine gun or a short–barreled shotgun, and the court noted that the statute did not contain the word "operable" or any indicatio that such a word should be read into it. The statute addresses only the original design of the weapon and reflects a strong publi policy to dissuade persons from possessing a certain class of dangerous weapons, said the court, and it appears to be sufficient t show only that the gun was possessed by the defendant. The court agreed with the state's argument that the intent of the legislatur was demonstrated by the fact that one could be convicted of a violation for the mere possession, even if there was no intent to employ the weapon illegally. Finally, the court pointed out that a short–barreled shotgun is a dangerous weapon because a per merely displaying it during a crime would meet with very little resistance. Under a statute prohibiting the possession of any offensive weapon and defining an offensive weapon as including, inter al sawed–off shotgun, the court, in Commonwealth v Ponds (1975) 236 Pa Super 107, 345 A2d 253 , held that offensive weapons

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were prohibited whether operable or inoperable and therefore affirmed a conviction of possession of a sawed–off shotgun, eve though it was stipulated that the shotgun was inoperable in that it had a defective trigger mechanism and was missing nu (unspecified) functional and nonfunctional parts. The court distinguished Commonwealth v Layton (1973) 452 Pa 495, 307 A2d 843 , (§ 7[b] ), as involving a much more limited statute—prohibiting the possession of a firearm by a person previously convicted of violence—that had been intended to cover only objects that could cause violence by firing a shot. In contrast, the Ponds cou regarded the present statute as dealing with weapons that have no peaceful purpose. By enacting the statute, said the court, legislature clearly stated that an implement for the infliction of serious bodily injury that serves no lawful purpose shall not b allowed to exist in our society; the legislature was not interested in the operability of a sawed–off shotgun but merely in it possession. Noting that much sorry experience had taught members of society to be inclined to accept such offensive weapons for what they appear to be, the court concluded that to establish a violation of the statute it was sufficient to show that the weapon had the outward appearance and characteristics of a sawed–off shotgun. CUMULATIVE SUPPLEMENT Cases: Defendant was properly convicted of possession of firearm by convicted felon and possession of unregistered firearm, even sawed–off shotgun had broken firing pin, since "firearm" as defined in statutes did not require operability, and fact that defendan was not aware of how weapon could be "readily restored" was irrelevant. United States v Yannott (1994, CA6 Mich) 42 F3d 999 , cert den (US) 130 L Ed 2d 1125, 115 S Ct 1172 . Operability of weapon is not element of offense of knowingly possessing prohibited weapon; rather, permanent inoperabil affirmative defense to that offense. A.R.S. §§ 13–105 , subd. 7, 13–3101, subd. 4. State v. Young, 965 P.2d 37 (Ariz. Ct. App. Div. 1 1998) , as amended, (May 7, 1998) and review denied, (Oct. 20, 1998). Shotguns seized from defendant's room were properly admitted in prosecution of defendant for possession of short–barreled shotgun, despite fact they were not shown to be fully operational; there is no requirement in statute defining short–barreled shotguns that they be fully operational. State v Wallace (1992, Mo App) 825 SW2d 626 . Defendant was properly convicted of possessing sawed–off shotgun in violation of statute, despite fact that weapon did not hav firing pin. Only exceptions to proscription of civilian possession sawed–off shotguns were set forth by statute and, to rely on defenses, defendant must prove either (1) that he possessed shotgun for scientific purposes or (2) that it was both unusable possessed as curiosity, ornament or keepsake. Conjunctive language of second exception meant that weapon merely unusable a firing weapon did not fall within such exception. Rogers v Commonwealth (1992) 14 Va App 774, 418 SE2d 727 . Defendant was properly convicted of possession of short–barreled shotgun in violation of statute defining shotgun as "weap designed or redesigned, made or remade, and intended to be fired from the shoulder or hip and made or remade to use the energy of a propellant in a fixed shotgun shell to fire through a smooth bore either a number of ball shot or a single projectile for each singl pull of the trigger," notwithstanding shotgun's firing pin was "missing" and gun therefore could not "be fired in its present condition." Statute did not require that shotgun be capable of being fired at time it was possessed. State v Johnson (1992, App) 171 Wis 2d 175, 491 NW2d 110 (citing annotation). [Top of Section] [END OF SUPPLEMENT] § 35[d] Possession[FN* ]—View unspecified Under the particular circumstances of the following case involving separate sawed–off shotgun parts, the court, without clea deciding whether operability was a requirement for violation of the weapons possession statute in question, held that the parts did not constitute a "shotgun" in violation of the statute. A conviction of knowingly possessing a sawed–off shotgun was reversed, in People v Coburn (1975, 1st Dist) 25 Ill App 3d 542, 323 NE2d 559 ,[FN69 ] where only the stock of the shotgun was found lying adjacent to the sleeping defendant, the barrel was discovered in another part

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of the basement, and although the two parts were pieced together at trial, the state offered no evidence to show that the barrel belonged to the stock. The state contended t weapon that is the subject of an unlawful use of weapons charge need not be shown to be operative and that it was sufficient to show that the weapon possessed the outward appearance and characteristics of a shotgun. The court, however, pointed out that barrel of a shotgun does more than render the weapon operative. Without it, reasoned the court, the object found lying next defendant lacked the essential characteristics of a shotgun and was merely the stock of a shotgun, which was not prohibited. § 36. Carrying Without taking a clear position regarding the existence of a requirement of operability for violation of the weapons statute in question, which prohibited the carrying of a dangerous weapon in a vehicle occupied by the defendant, the court, under the particular circumstances of the following case, held that the disassembled sawed–off shotgun at issue was a "dangerous weapon" in violation of the statute. Testimony that police officers opened the trunk of a car occupied by the defendant and found a brown paper bag contain disassembled sawed–off shotgun and that they also found a shotgun shell under the dashboard of the car was held sufficient t support a jury finding that the shotgun was a dangerous weapon, in People v Harper (1966) 3 Mich App 316, 142 NW2d 496 , the court affirming a conviction of carrying a dangerous weapon in a motor vehicle occupied by the defendant. Rejecting the d contention that the trial judge should have decided as a matter of law that a disassembled shotgun, locked in the trunk of a vehicle, is not a dangerous weapon, the court merely stated that this was a question of fact for the jury to determine from the testimony of all of the witnesses. § 37. Other or unspecified offense In the following case involving the offenses of illegal transfer and illegal making of a sawed–off shotgun, the court held that a prima facie case of operability of the weapon had been established. Unspecified evidence, including unspecified statements attributed to the defendant by government witnesses, was held suffic establish at least a prima facie case that the shotgun in question was operable, in United States v Priest (1979, CA10 Colo) 594 F2d 1383 , cert den 444 US 847, 62 L Ed 2d 61, 100 S Ct 95 , the court affirming convictions of, inter alia, illegal transfer of a sawed–off shotgun under 26 U.S.C.A. § 5681 (e) and illegal making of the same gun under 26 U.S.C.A. § 5681 (f) The court noted that a shotgun was rather broadly defined in 26 U.S.C.A. § 5681(d) as including any weapon that "may be readily restored to fire a fixed shotgun shell." V. Machine Gun or Submachine Gun § 38[a] Possession[FN70 ]—Statute violated [Cumulative Supplement] The violation of a statute creating a criminal offense involving the possession of a machine gun or a firearm was held established or supportable in the following cases, even though the machine gun or submachine gun in question was broken, dismantled, or missing a part, the courts emphasizing that the gun was nevertheless operable or that it could be readily restored to operability. A conviction of possession of an unregistered firearm in violation of 26 U.S.C.A. § 5861(d) was not precluded by the fact that the automatic machine pistol at issue was disassembled when found in a trash can on a porch outside the defendant's apartment, held the court, in United States v Theodoropoulos (1989, CA3 Pa) 866 F2d 587, 27 Fed Rules Evid Serv 633 , mand den (US) 103 L Ed 2d 246, 109 S Ct 1179 , reh den (US) 104 L Ed 2d 208, 109 S Ct 1773 and post-conviction proceeding on other grounds (ED Pa) 1989 US Dist LEXIS 6844. Affirming that conviction, the court pointed out that (1) a firearm was defined in 18 U.S.C.A. § 921(a)(3) as any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (2) t machine pistol here easily could have been made operable; and (3) the definition of a machine gun in 26 U.S.C.A. § 5845(b) included any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person. In United States v Janik (1983, CA7 Ill) 723 F2d 537 (disapproved on other grounds by Henderson v United States, 476 US 321, 90 L. Ed. 2d 299, 106 S Ct 1871

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), the court, although reversing on other grounds the defendant's conviction of possessing two unregistered guns, a submachine gun and a sawed–off shotgun, in violation of 26 U.S.C.A. § 5861(d) , acknowledged the existence of a requirement that the guns be capable of being operated and held that this requirement had been met. As to the submachine gun, it was found disassembled, but the defendant told a police officer that he had disassembled it after firing it and had not been able to reassemble it. The defend having fired it was held enough to show that it was operable. Affirming a conviction of knowingly possessing an unregistered firearm in violation of 26 U.S.C.A. § 5861(d) , the court, in United States v Smith (1973, CA8 Mo) 477 F2d 399 , held that the trial judge had correctly determined that the submachine gun in question was a "firearm" as defined in 26 U.S.C.A. § 5845 because, in the key statutory language, it could be "readily restored to shoot, automatically," even though the process of restora would have required an 8–hour working day in a properly equipped machine shop. That time estimate was made by a govern firearms agent, who also testified that (1) when manufactured the gun had been designed to shoot; (2) the barrel was subsequent filled with metal and welded so that it was not in fireable condition; (3) the barrel was welded closed at the breech and also w welded to the receiver on the outside under the handguard; and (4) the most feasible method of making the gun operable would be to cut the barrel off, drill a hole in the forward end of the receiver, and rethread the hole so that the same or another barrel co inserted. Viewing this testimony in the light most favorable to the government, the court concluded that there was substantia evidence to support the trial judge's determination. U.S.C.A. § 5845(b) Under 26 , which defines a "machine gun" as any weapon that shoots, is designed to shoot, or can be readily restored to shoot automatical more than one shot, without manual reloading, by a single function of the trigger, the court, in United States v Alverson (1982, CA9 Nev) 666 F2d 341 (disagreed with on other grounds by United States v Villano (CA10 Colo) 797 F2d 1547 , reh gr, en banc (CA10) 803 F2d 580 , on reh, en banc (CA10 Colo) 816 F2d 1448 ), held that a rational trier of fact could have concluded, beyond a reasonable doubt, that the Thompson.45–caliber machine gun in question either could have been readily restored to sh automatically or had been fully automatic when the defendant brought it into a gun store for sale on consignment. Thus, the affirmed a conviction for possession of an unregistered machine gun in violation of 26 U.S.C.A. § 5861(d) When the defendant first brought the weapon to the store, he stated that he and his son had just been firing it and that while his son was shooting it, he had held down the trigger too long. This statement, reasoned the court, makes sense only in reference to a weapon that fires more than one shot per function of the trigger. In the presence of gun store employees, the defendant removed from the gun a "disconnect," which prevents a gun from firing more than one shot per function of the trigger, and replaced it with another that had a smaller hump on it. A government firearms expert testified that the Thompson probably would fire fully automatically if i disconnect on which the hump had been "filed down." He also testified that a "shaved off" disconnect, in conjunction with th polished interior surfaces that he actually observed on the Thompson, "would convert it into fully automatic." The court also pointed out that the defendant had the knowledge to convert semiautomatic weapons to fully automatic, that he had done so previous occasions, and that he had admitted spending 18 months in prison for possession of a machine gun. Overruling the defendants' exceptions to the denial of their motions for directed verdicts presented at the conclusion of the evidence in a prosecution for unlawful possession of a machine gun, the court, in Commonwealth v Bartholomew (1950) 326 Mass 218, 93 NE2d 551 ,[FN71 ] held that the absence of an easily replaceable firing pin did not destroy the character of the implement in question as a machine gun. The defendants were in joint possession of a.45–caliber submachine gun that had no firing pin and in that condition w incapable of discharging a bullet. An expert witness testified that the firing pin was a standard part and could be tooled by a machinist from a large nail or spike and that the witness had inserted a firing pin in the gun and fired it. The court, conceding weapon designed for firing projectiles may be so defective or damaged that it has lost its initial character as a firearm, declared th this character is not lost when a relatively slight repair, replacement, or adjustment will make it an effective weapon. Overruling exceptions to the denial of a defense motion for a finding of not guilty of possession of a machine gun withou permission, the court, in Commonwealth v Colton (1956) 333 Mass 607, 132 NE2d 398 , held that the absence of a clip or magazine with the gun or in the defendant's possession did not cause the gun to lose its character as a machine gun—"any more than the absence of a bullet would destroy the character of a rifle." A machine gun was statutorily defined as any gun of small– caliber designed for rapid fire and operated by a mechanism, or any gun that operates automatically after the first shot has been fired, either by gas action or recoil action. An expert testified that (1) the subject gun was of that description; (2) when test–fired it was in perfect operating condition; (3) the magazine or clip was a vital and characteristic part of this submachine gun for the purpose of automatic, rapid, and successive firing; and (4) without the magazine or clip the gun was incapable of firing more than one shot without reloading. Obviously, said the court, the state of the gun when found was such that the insertion of bullets in th

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usual way, held in a feeding clip or magazine, would make it an operable automatic weapon, and it was not necessary for the state to introduce evidence that there existed an easy facility or means to procure a magazine or a substitute, ready replacement, or simple adjustment. The court added that not even a slight repair, replacement, or adjustment was necessary to make the gun effective weapon. Emphasizing that the statutory definition of a machine gun had been expanded, by amendment of 26 U.S.C.A. § 5845(b) , to include any part designed and intended solely and exclusively for use in converting a weapon into a machine gun, the court, in States v Evans (1989, DC Mont) 712 F Supp 1435 United , held that steel tubes destined to be fitted as machine gun receivers fell within the statutory definition. Denying defense motio dismiss an indictment charging the possession of machine guns and related offenses, the court pointed out that the stated purpose of the statutory amendment was to help control the sale of incomplete machine gun conversion kits in circumvention of the prohibition on the sale of completed kits. CUMULATIVE SUPPLEMENT Cases: In order to convict defendant of possession of machine gun based on possession of combination of parts from which machine g could be assembled, government was not required to prove that defendant knowingly possessed a combination of parts from which a weapon actually capable of firing automatically could be assembled, but only that he knowingly possessed combination of par from which a weapon "designed to shoot" automatically could be assembled. 18 U.S.C.A. §§ 921(a)(23) , 922(o ) ; 26 U.S.C.A. § 5845(b) . U.S. v. Wonschik, 353 F.3d 1192 (10th Cir. 2004) . Jury properly found defendant in possession of machine gun, which fires more than 12 shots without reloading, even thoug magazine was defective and failed to feed bullets into chamber of gun, since magazine was not integral part of gun. United States v Woodfolk (1995, Dist Col App) 656 A2d 1145 . See State v Elrose (1994, App Div) 277 NJ Super 548, 649 A2d 1351 , § 3[c] . [Top of Section] [END OF SUPPLEMENT] § 38[b] Possession[FN* ]—Statute not violated A statute prohibiting the possession of a machine gun was held not violated in the following case, where the absence of two vita parts, not found in the possession of either defendant, made it impossible for the gun to fire more than one shot at a time. Under a statute prohibiting possession of a machine gun and defining a machine gun as a weapon of any description from whi number of shots or bullets may be rapidly or automatically discharged from a magazine with one continuous pull of the trigger, court, in People v Woods (1952) 202 Misc 562, 114 NYS2d 611 , held that the instrument found in the defendants' possession was not a machine gun because it was missing two vital parts—a saddle piece and a saddle type drum. The absence of the saddle pie made it impossible for the saddle type drum to be affixed, and the absence of the latter made it impossible to fire more than one shot at a time; each successive shot had to be separately loaded. No saddle piece or saddle type drum was found in the possession of either defendant, and it appeared that the gun had been brought into the country in its incomplete condition. Because the instrument could fire only one shot at a time, the court remarked that in reality it was nothing more than a rifle. The crimina complaint against the defendants was accordingly dismissed, and they were discharged. § 39. Use The offense of criminal use of a machine gun was held established in the following case even though the gun, when tested, failed to fire more than one shot at a time, where there was unrebutted expert testimony that the gun would fire automatically with ammunition. Affirming a conviction of criminal use of a prohibited weapon, the court, in Beck v State (1984) 12 Ark App 341, 676 SW2d 740 , reh den, en banc 12 Ark App 350, 680 SW2d 110 , held that the state had established at least a jury question as to whether the seized weapon was a machine gun, even though the weapon, when tested, failed to fire more than one shot at a time. The state' expert witness, whose testimony was uncontradicted, explained that (1) the gun would not eject a round or fire automatically; (2

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once a spent shell was manually ejected, the gun would fire again; (3) when the gun was first tested, the wrong size bullets were in it; (4) when the right size bullets were obtained, the gun would still fire only once, probably because the ammunition had confiscated and was stale; (5) he could find no other obvious reason for the gun's not working properly; and (6) he had no doubt that it would fire automatically with proper ammunition. Stressing that the defendant had offered no evidence to rebut the ex opinion, the court concluded that the jury clearly had resolved the fact question against the defendant. § 40. Other or unspecified offense [Cumulative Supplement] Criminal offenses involving transferring or dealing in machine guns were held established in the following cases, where the transfers included all of the necessary parts for the disassembled guns. Without stating its reasoning in its per curiam opinion, the court, in United States v Kokin (1966, CA3 NJ) 365 F2d 595, 66-2 USTC ¶15705 , cert den 385 US 987, 17 L Ed 2d 448, 87 S Ct 597 , held that the sale and transfer of an M–1 carbine, itself not a machine gun, together with all of the parts necessary to convert it into an M–2 carbine, a type of machine gun, constituted the transfer of a machine gun. Thus, the court affirmed the defendants' convictions of dealing in and transferring machine guns as defined in 26 U.S.C.A. § 5848 (2). In United States v Lauchli (1966, CA7 Ill) 371 F2d 303, 67-1 USTC ¶15727 , the defendant's conviction of, inter alia, transferring 109 machine guns without paying a tax, without obtaining a written order from the transferee, and without affixing a U.S.C.A. §§ 5801 tax stamp to the order (26 -5862) was affirmed, even though only 7 of the guns were already assembled. The defendant seller knew that the buyers planned to assemble the guns, provided all of the necessary materials, assisted in the assembly of 7 of the weapons, and even automatically fired one of them. He admitted on cross–examination that the assembly of the weapons would violate the federal statute and that he expected the unassembled guns to become firearms. The purchasers demanded operable machine guns, and the defendant gave them a booklet explaining their assembly. A government expert later selected 5 of the 109 guns at random and automatically fire them after assembling them, oiling them, and stretching their drive springs. The court distinguished United States v Thompson (1962, ND Cal) 202 F Supp 503 , § 28[b] (superseded by statute as stated in United States v Drasen (CA7 Ill) 845 F2d 731 , (§ 27), cert den (US) 102 L. Ed. 2d 250, 109 S Ct 262 ), on the ground that in the present case the 109 guns contained all of their parts. CUMULATIVE SUPPLEMENT Cases: Indictment charging that defendant conspired to cause illegal possession of machine guns and aided and abetted illegal possession of machine guns did not fail to state offense, despite fact that some parts of weapon required further refinement from form in which he sold them before weapon could be used as machine gun; since defendant was charged with conspiracy, he would still be guilty if he simply intended that those to whom he sold parts actually refined them into parts which could be readily assembled into machine guns. United States v Evans (1991, CA9 Mont) 928 F2d 858, 91 CDOS 2034, 91 Daily Journal DAR 3237 . Asserted semi–automatic assault weapon was properly found to be a "firearm" within the meaning of federal firearms statute, though government expert testified that the gun would not fire initially because it had been assembled improperly, where he indicated that, after a short reassembly of the weapon, it fired in semi–automatic fashion; under this testimony, the jury could properly find that the weapon was designed to, and could readily be converted to, expel a projectile by the action of an explosive. 18 U.S.C.A. §§ 921(a)(2) , 924(c) . U.S. v. Cavely, 318 F.3d 987 (10th Cir. 2003) . [Top of Section] [END OF SUPPLEMENT] VI. Unspecified Gun § 41[a] Possession—generally or without license, permit, or registration[FN72 ]—View that operability is required for violation—statute violated [Cumulative Supplement]

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Apparently taking the position that operability was a requirement for violation of the general weapons possession statutes in question, the courts in the following cases, involving an unspecified kind of gun, held that a violation of the statute was established or supportable. The fact that the defendant's gun (of an unspecified kind) malfunctioned, standing alone, does not defeat the overwhelming inference that immediately before the defendant pulled the trigger the gun was capable of discharging the ammunition, held the court, in People v Cavines (1987) 70 NY2d 882, 524 NYS2d 178, 518 NE2d 1170 , particularly in view of the uncontradicted evidence that when subsequently test–fired the gun and bullets were found to be operable. A conviction of criminal possession weapon in the second degree was affirmed. The defendant pointed the gun at a man who put his hands over his face and heard clicks, but the gun did not fire. The gun was later examined and found to be loaded with live ammunition but jammed. A polic officer dismantled the gun, removed the jammed round of ammunition, and reassembled it. He observed that the bullet had a sm dent, indicating that it had been struck by the firing pin when the trigger was pulled. A ballistics officer then test–fired the gun and the ammunition; both worked. The court decided that the jury was entitled to conclude that the first officer had not materially altered the gun in removing the jammed bullet and that the gun could readily have discharged. Unspecified evidence was held sufficient, without discussion, to sustain the state's burden of demonstrating that the gun in question (of an unspecified kind) was operable, in People v Rosenfeld (1983, 2d Dept) 93 App Div 2d 872, 461 NYS2d 383 , app den 59 NY2d 977 , habeas corpus proceeding (CA2 NY) 820 F2d 52 , cert den 484 US 968, 98 L Ed 2d 402, 108 S Ct 463 and (disagreed with on other grounds by United States v Mentz (CA6 Ohio) 840 F2d 315, 24 Fed Rules Evid Serv 1154 ), the court affirming a conviction of criminal possession of a weapon in the second degree. The court cited as authority People v Grillo (1961, 2d Dept) 15 App Div 2d 502, 222 NYS2d 630 , (§ 4), affd 11 NY2d 841, 227 NYS2d 668, 182 NE2d 278 . In People v Ciola (1988, 2d Dept) 136 App Div 2d 557, 523 NYS2d 553 , app den 71 NY2d 893, 527 NYS2d 1003, 523 NE2d 310 , the court, affirming a conviction of criminal possession of a weapon in the second degree, held that evidence of the operability o the defendant's gun (of an unspecified kind) was provided by (1) the testimony of eyewitnesses who saw and heard the defendant fire the gun, first at the complainant and then at police officers; and (2) a stipulation by the parties that the gun and the amm recovered from the defendant were both operable. Affirming in pertinent part a conviction of, inter alia, having a weapon in a motor vehicle, the court, in State v Carpenter (1989) 19 Conn App 48, 562 A2d 35 , app den 213 Conn 804, 567 A2d 834 , held that operability of the unspecified firearm was an essential element of the crime and that there was ample evidence from which the jury could infer that operability had been proven beyond a reasonable doubt. With regard to its conclusion that there was a legal requirement of operability, the court pointed to statutory language defining a firearm as a weapon from which a shot may be discharged. As to the sufficiency of the evi operability of the unspecified firearm and other guns involved in the case, the court noted that (1) a witness testified that he had fired one of the weapons at a cemetery; (2) the mother of a purchaser of two of the guns testified that her son had asked her to bullets for the guns, which she had refused to do; and (3) the weapons had been entered as full exhibits and made available to the jurors for examination. CUMULATIVE SUPPLEMENT Cases: One of the necessary elements that the state must prove for a conviction for criminal possession of a firearm is that the firearm tha the defendant is alleged to have possessed is operable. C.G.S.A. § 53a–217 . State v. Rogers, 50 Conn. App. 467, 718 A.2d 985 (1998) . Operability is essential element of criminal possession of a weapon in the second degree. People v. Aponte, 673 N.Y.S.2d 148 (App. Div. 2d Dep't 1998) , leave to appeal denied, 92 N.Y.2d 893, 680 N.Y.S.2d 56, 702 N.E.2d 841 (1998) . [Top of Section] [END OF SUPPLEMENT] § 41[b] Possession—generally or without license, permit, or registration[FN* ]—Statute not violated [Cumulative Supplement]

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Operability was held to be a requirement for violation of a general firearms possession statute in the following case involv unspecified kind of gun, and a violation of the statute was held not established. It was summarily held, in People v Donaldson (1975, 4th Dept) 49 App Div 2d 1004, 374 NYS2d 169 , that in the absence of proof that the gun (of an unspecified kind) produced by the state was operable and not mechanically defective, the state had failed to establish an essential element of the crime charged. A conviction of possession of a firearm was accordingly reversed. CUMULATIVE SUPPLEMENT Cases: Absent evidence of operability of any weapons involved in incident, none of which were recovered, defendant's convict fourth–degree criminal possession of weapon had to be vacated, and corresponding count of indictment dismissed. People v. Robles, 673 N.Y.S.2d 654 (App. Div. 1st Dep't 1998) , leave to appeal denied, 92 N.Y.2d 904, 680 N.Y.S.2d 68, 702 N.E.2d 853 (1998) . [Top of Section] [END OF SUPPLEMENT] § 41[c] Possession—generally or without license, permit, or registration[FN* ]—View that operability is not required for violation [Cumulative Supplement] Operability was held not to be a requirement for violation of a general firearms possession statute in the following case involving an unspecified kind of gun. In Townsend v United States (1989, Dist Col App) 559 A2d 1319 , a conviction of possession of an unregistered firearm was affirmed, the court holding that the statute creating the offense was not limited to firearms that are operable. An unspecified kind of gun was found in the defendant's possession. A crime scene search officer testified that he had examined the gun and found inoperable because the firing pin and spring mechanisms were not intact. He further testified that with the necessary parts an expertise he was able to render a similar gun operable in about two minutes. The statute defined a "firearm" as any weapon that will, or is designed or redesigned, made or remade, readily converted or restored, and intended to, expel a projectile or projectiles by the action of an explosive. The statute also expressly covered the frame or receiver of any such device. Clearly, said the court, the statute includes in its definition of a "firearm" inoperable weapons that may be redesigned, remade, or readily converted o restored to operability. The court also interpreted the words "intended to" as referring to the design or purpose of the object i question rather than the state of mind of the person who possesses it. CUMULATIVE SUPPLEMENT Cases: Inoperable gun found in possession of defendant was a "firearm," within meaning of penal code definition of firearm, for purposes of defendant's convictions for being a felon in possession of a firearm and possession of a firearm during the commission of a felony, although the gun did not function as it was mechanically designed to function and was missing the firing-pin assembly, part of the slide, the magazine, and some springs; weapon possessed by defendant was the type of weapon that was designed to propel a dangerous projectile by an explosive, gas, or air, as required by the statutory definition. M.C.L.A. § 750.222(d) . People v. Peals, 720 N.W.2d 196 (Mich. 2006) . Defendant could be convicted of felon in possession of a firearm even though firearm was inoperable. M.S.A. § 609.165, subd 1b(a). State v. Knaeble, 652 N.W.2d 551 (Minn. Ct. App. 2002) . Evidence that disassembled firearm could be reassembled in a matter of seconds was sufficient to support defendant's conviction for unlawful possession of a firearm under statute which defined firearm, for purposes of possession offenses, as a weapon or device from which a projectile "may be fired." West's RCWA 9.41.010(1) . State v. Padilla, 95 Wash. App. 531, 978 P.2d 1113 (Div. 1 1999) , review denied, 139 Wash. 2d 1003 (1999) . Conviction for unlawful possession of a firearm in the second degree does not require evidence of operability concurrently

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possession. West's RCWA 9.41.010(1) . State v. Anderson, 94 Wash. App. 151, 971 P.2d 585 (Div. 1 1999) , review granted, 138 Wash. 2d 1007 (1999) . [Top of Section] [END OF SUPPLEMENT] § 42. By previously convicted person [Cumulative Supplement] Apparently adopting the view that operability was a requirement for violation of a statute prohibiting the possession of a firearm by a previously convicted person, the courts in the following cases, involving an unspecified kind of gun, held that a violation of statute was established or supportable. See also People v Woodard (1979) 23 Cal 3d 329, 152 Cal Rptr 536, 590 P2d 391 [FN73 ] (superseded by statute on other grounds as stated in People v Harrison (3rd Dist) 150 Cal App 3d 1142, 198 Cal Rptr 762 , hear gr by sup ct, transf, later op, withdrawn) and (superseded by statute on other grounds as stated in People v Aldana (1st Dist) 151 Cal App 3d 948, 199 Cal Rptr 156 , op withdrawn by order of ct) and (superseded by statute on other grounds as stated in People v Norwood (2nd Dist) 174 Cal App 3d 358, 219 Cal Rptr 913 , op withdrawn by order of ct), wherein the court, in an out–of–scope context, listed operability as one of the elements of the offense of being a felon in possession of a concealable firearm. In State v Bennett (1986) 79 Or App 267, 719 P2d 38 , review den 301 Or 667, 725 P2d 1294 , the court, although reversing on other grounds other convictions of the same defendant, upheld his conviction of being an ex–convict in possession of a fi rejecting the defense contention that the state had failed to prove that the (unspecified) weapons in question were readily capable of use as weapons because there was no evidence of firing them. The court concluded that there was evidence from which the jury could reasonably have concluded that one or more of the guns, which had been stolen from a gun shop, were readily capable of use as weapons, where (1) the weapons had been offered for sale by the gun shop as usable; (2) they were weapons designed ammunition to expel projectiles; and (3) the defendants took ammunition as well as weapons from the gun shop. Affirming a conviction of being a convict in possession of a firearm, the court, in Commonwealth v Yaple (1976) 238 Pa Super 236, 357 A2d 617 , rejected the contention that the state had failed to prove the existence of an operable firearm because no firearm was introduced into evidence. Adopting the view that there need not be direct proof of operability, the court concluded that an inference of operability was reasonably based on the (unspecified) testimony of the victim. The court distinguished Commonwealth v Layton (1973) 452 Pa 495, 307 A2d 843 , (§ 7[b] ), on the ground that it had been stipulated in Layton that the weapon in question was inoperable. In the following case involving an unspecified kind of gun and the offenses of possession and receipt of a firearm by a convicte felon, the court stated that the governing statutes did not require that the weapon be operable.La State v Hill (1990, La App 5th Cir) 562 So 2d 12 , cert den (La) 567 So 2d 99 In United States v Goodheim (1982, CA9 Cal) 686 F2d 776, 11 Fed Rules Evid Serv 792 , the court, affirming convictions of receipt of a firearm by a convicted felon and possession of a firearm by a convicted felon, stated that the statutory language defining "firearm" for purposes of those offenses (18 U.S.C.A. § 921(a)(3) and 18 U.S.C.A. Appendix § 1201(c) (3)) does not require that the weapon be operable. The pertinent definitional language was any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; or any firearm muffler or firearm silencer; or any destructive device. The court also noted that (1) the defendant had stipulated at trial that each (unspecified) weapons in question was a "firearm" within the statutory definition; (2) the trial judge had instructed the jury regarding the definition of "firearm" by reading from the applicable statutes; (3) the government's expert witness had not de "firearm" in any manner inconsistent with the applicable statutes and had specifically stated that a "firearm" within the statut meaning need not be operable; and (4) the testimony of a firearms dealer, who had test–fired all three weapons, was sufficient to establish operability. CUMULATIVE SUPPLEMENT

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Cases: Weapon seized from defendant constituted a firearm, as required to sustain defendant's conviction for being a felon in possession of a firearm, notwithstanding broken firing pin; expert in firearm technology testified that once the firing pin was replaced, th weapon functionally fired, and that a replacement firing pin could be purchased at any gun store across the country for approximately ten dollars. 18 U.S.C.A. § 922(g) . U.S. v. Butler, 101 Fed. Appx. 97 (6th Cir. 2004) . Operability is not element of charge of being felon in possession of firearm. 18 U.S.C.A. § 922(g) . U.S. v. Fisher, 137 F.3d 1158 (9th Cir. 1998) . Government was not required to show that firearm was operable to obtain conviction for possession of firearm by convicted felon. 18 U.S.C.A. §§ 921(a)(3) , 922(g)(1) . U.S. v. Adams, 137 F.3d 1298 (11th Cir. 1998) . [Top of Section] [END OF SUPPLEMENT] § 43. During commission of crime Holding established or supportable a violation of a statute prohibiting possession of a firearm during the commission of a crime, the courts in the following cases, involving an unspecified kind of gun, stated or implied that operability was not a requirement violation, or for a prima facie case of violation, of the statute. Affirming a conviction of possession of a firearm in the commission of a felony, the court, in People v Gibson (1979) 94 Mich App 172, 288 NW2d 366 , revd in part on other grounds 411 Mich 993, 308 NW2d 111 , held that the prosecutor need not present proof of operability as an element of a prima facie case in a felony–firearm prosecution. A contrary requirement, reasoned the court, would be inconsistent with the legislative intent of discouraging the practice of carrying guns in circumstances where harm is apt to occur. Affirming a conviction of possession of a firearm in the commission of a felony, the court, in People v Boswell (1980) 95 Mich App 405, 291 NW2d 57 , rejected a defense contention that since the gun in question was temporarily inoperable because it was "jammed," it did not meet the statutory definition of a "firearm" as any weapon from which a dangerous projectile may be propelled by using explosives, gas or air as a means of propulsion (with certain exceptions not relevant to the instant case). Holding that the gun (of an unspecified kind) used in the instant case clearly fell within the statutory definition, the court commented that the statute demonstrated legislative intent to distinguish the firearm from other potentially dangerous weapons by describing its general construction an manner of use. Observing further that the operability of a gun had been held irrelevant for a conviction of carrying a conceal weapon, the court stated that the same reasoning was equally apt here and that a contrary result would thwart the deterrent purpose of the felony–firearm statute. In People v Jackson (1981) 108 Mich App 346, 310 NW2d 238 , the court affirmed a felony–firearm conviction over the contention that it had to be set aside because the prosecutor had not offered positive proof that the weapon (of an unspecified kin was in operable condition. Stating that no such duty was imposed by Michigan case law, the court adopted the view that to require the prosecutor to present proof of operability as an element of a prima facie case would be inconsistent with the legislative pur behind the felony–firearm statute of discouraging the practice of carrying guns in circumstances in which harm is apt to occur; would also prevent prosecution under the statute in cases in which the weapon is not recovered, even though the victim testifies to its existence. In People v Pierce (1982) 119 Mich App 780, 327 NW2d 359 , a felony–firearm conviction was affirmed despite the defendant's contention that the weapon (of an unspecified kind) he had used in an assault was incapable of firing due to a broken spring on the firing pin. According to the court, the legislature had clear intended the felony–firearm statute to discourage carrying guns whether operable or not. The statute has a very broad deterre purpose, said the court, reasoning that if the state had to prove operability, a defendant could not be convicted of felony–firearm if the gun is never recovered—even if the victim testifies that he saw the gun. Noting that a prime concern behind the statute was protect the victim, the court also pointed out that the victim is no less frightened if the gun, most likely unknown to him, happens to be inoperable. In People v Brooks (1984) 135 Mich App 193, 353 NW2d 118 , although the defendant stated that his gun (of an unspecified kind) was broken, the court, affirming a felony–firearm conviction, held that the term "firearm," as used in the felony–firearm statute, includes a weapon from which a dangerous projectile may be propelled, even though the weapon may be in a state o

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disrepair and therefore temporarily incapable of firing. Disagreeing with some contrary language in People v Mason (1980) 96 Mich App 47, 292 NW2d 480 , (§ 8[b] ), the court relied on the reasoning in People v Pierce (1982) 119 Mich App 780, 327 NW2d 359 (this section). The court also appeared to adopt the reasoning view that the legislative intent was to discourage carrying guns whether operable or not, and to protect victims of crime, who presumably are not less frightened if the gun just happens to inoperable. On the authority of People v Fort (1984) 138 Mich App 322, 361 NW2d 346 , (§ 8[b] ), the court, in People v Garrett (1987) 161 Mich App 649, 411 NW2d 812 , app den 430 Mich 856 , summarily held that in order to convict of possession of a firearm during the commission of a felony, the firearm need not be operable. However, the defendant's felony–firearm conviction wa reversed on other grounds. § 44. Of loaded firearm in public place Under a statute prohibiting possession of a loaded firearm in a public place, the court, in the following case involving an unspecified kind of gun, held that operability of the gun was not a requirement for violation. Affirming a conviction of possession of a loaded firearm in a public place, the court, in People v Taylor (1984, 4th Dist) 151 Cal App 3d 432, 199 Cal Rptr 6 , held that a firearm need not be operable to convict under the governing statute. The defendant's gun (of an unspecified kind), when examined by a police technician, had a nail, instead of a bolt, protruding from the cylinder. The technician's opinion was tha the nail caused the cylinder to wobble, thus making proper alignment difficult or impossible. At trial the nail was missing, but there was testimony that despite the nature of the firing mechanism, nothing prevented the gun from discharging. The court held t although the evidence demonstrated that the gun was operable, operability was not an element of the offense. Noting that possession of a firearm under the circumstances enumerated in the statute constitutes a threat, the court added that it does not matter that the firearm does not work when it is seen by a victim of crime, an innocent bystander, or a member of law enforcement. If the legislature had intended otherwise, said the court, it was free to require the firearm to be operable. § 45[a] Carrying—concealed[FN74 ]—View that operability is required for violation—statute violated In the following cases involving an unspecified kind of gun and a statute prohibiting the carrying of a concealed firearm, the courts, although recognizing that operability is a requirement for violation of the statute, at least when evidence of inoperability i introduced, held that the statute had been violated under the particular circumstances. See also People v Hale (1974, 2nd Dist) 43 Cal App 3d 353, 117 Cal Rptr 697 , involving the issue of whether a police officer had reasonable cause to suspect, at the time of a search, that the defendant was carrying an unlicensed firearm concealed in h vehicle, wherein the court recognized that a firearm disassembled into two or more parts can nevertheless constitute an opera weapon within the meaning of the state's weapons control statute. Relying on Commonwealth v Layton (1973) 452 Pa 495, 307 A2d 843 , (§ 7[b] ), and Commonwealth v Lee (1973) 224 Pa Super 17, 302 A2d 474 , (§ 22), for the proposition that the state need not show the weapon in question to have been operable until evidence of inoperability has been introduced into evidence, the court, in Commonwealth v Horshaw (1975) 237 Pa Super 76, 346 A2d 340 , affirmed a conviction under a statute prohibiting any person from carrying a firearm in any vehicle or concealed on or about h person. Because no evidence of inoperability had been introduced, the court concluded that the defendant's claim that his gun (of an unspecified kind) had not been shown to be operable was without merit. Affirming a conviction of carrying a concealed firearm without a license, the court, in Commonwealth v Yaple (1976) 238 Pa Super 236, 357 A2d 617 , rejected the contention that the state had failed to prove the existence of an operable firearm because no firearm was introduced into evidence. Adopting the view that there need not be direct proof of operability, the court concluded that an inference o operability was reasonably based on the (unspecified) testimony of the victim. The court distinguished Commonwealth v Layton (1973) 452 Pa 495, 307 A2d 843 , (§ 7[b] ), on the ground that it had been stipulated in Layton that the weapon in question was inoperable. § 45[b] Carrying—concealed[FN* ]—Statute not violated Holding that no violation of a statute prohibiting the carrying of a concealable firearm concealed in a vehicle had been established

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the court, in the following case involving an unspecified kind of gun, construed the statute as requiring operability for violation. The legislature did not intend to include inoperable weapons within the meaning of a concealable weapon the public possession and transportation of which is regulated by section 12025 of the state's weapons control statute, held the court, in People v Claseman (1986) 183 Cal App 3d Supp 1, 229 Cal Rptr 453 (disapproved by People v Marroquin (1989, 2nd Dist) 210 Cal App 3d 77, 258 Cal Rptr 290 , § 10[c] ), reversing a conviction of carrying concealed in a vehicle a concealable firearm. The court pointed out that although the legislature had amended certain other sections of the statute to negate the operability requirement established in People v Jackson (1968, 2nd Dist) 266 Cal App 2d 341, 72 Cal Rptr 162 , (§ 7[d] ), those sections were concerned with certain classes of persons, such as ex–felons and narcotics addicts, who should not possess concealable firearms. In contrast, noted the court, section 120 chiefly regulates the possession in public or in a vehicle of unloaded concealable firearms by persons permitted to possess s weapons. The court also distinguished People v Nelums (1982) 31 Cal 3d 355, 182 Cal Rptr 515, 644 P2d 201 , (§ 48), as involving still other sections of the statute that provided an enhanced punishment for a person who, while committing a felony, armed with or uses a firearm. The Claseman court explained that part of the theory underlying Nelums—concern about arm offenders stimulating resistance by passively displaying their firearms—did not apply to the lawful transportation of a concea firearm. Finally, the court stressed that its opinion was limited to the possession of an unloaded inoperable concealable firearm. § 45[c] Carrying—concealed[FN* ]—View that operability is not required for violation According to the courts in the following cases involving an unspecified kind of gun, operability was not a requirement for violation of a statute prohibiting the carrying of a concealed weapon. In People v Clark (1970) 24 Mich App 440, 180 NW2d 342 , the court, in an out–of–scope context, recognized that proof that the weapon (of an unspecified kind) was operational and loaded was irrelevant to the offense of carrying a concealed weapon. Similarly, in State v Phillips (1981, Mo App) 629 SW2d 522 , the court recognized in dictum that proof that the gun (of an unspecified kind) was operable was unnecessary to sustain a conviction for carrying a concealed weapon. § 46. "Dangerous" or "deadly" weapon Operability was a requirement for violation of a statute prohibiting the carrying of a concealed deadly weapon, according to the court in the following case involving an unspecified kind of gun. In Commonwealth v Harris (1961, Ky) 344 SW2d 820 , involving an unloaded gun, the court recognized, in deciding another matter, that a firearm (of an unspecified kind) incapable being fired because of mechanical defects did not constitute a "deadly weapon" within the meaning of a statute prohibiting th carrying of a concealed deadly weapon. v State (1975, Okla Crim) 542 P2d 522 See also Prock , (§ 47), wherein the court, affirming a conviction of carrying a firearm after a former conviction of a felony, rejected the defendant's contention that the state had failed to prove that the gun in question (of an unspecified kind), an exhibit in evidence, was dangerous or deadly by showing that it was capable of firing a projectile. § 47. By previously convicted person Under a statute prohibiting the carrying of a firearm by a person previously convicted of a felony, the court, in the following involving an unspecified kind of gun, apparently took the position that operability was a requirement for violation of the statute and held that a violation of the statute had been established. In Prock v State (1975, Okla Crim) 542 P2d 522 , the court, affirming a conviction of carrying a firearm after a former conviction of a felony, rejected the defendant's contention that the state had failed to prove that the gun in question (of an unspecified kind), an exhibit in evidence, was dangerous or deadly by showing that it was capable of firing a projectile. A poli officer testified that the.32–caliber Colt double–action gun was a real gun capable of firing a projectile. The court pointed out that the state had also attempted to show, through the officer, that the gun actually would work but that the trial judge had sustaine defense objection and had allowed the officer only to testify that the gun worked but not to show that it worked. The court concluded that the state had presented sufficient evidence to show that the gun was one clearly prohibited by the governing statute. § 48. During commission of crime

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In the following case involving an unspecified kind of gun and a statute providing an enhanced penalty for a person who is arme with a firearm during the commission or attempted commission of a felony, the court held that operability was not a requirement for violation of the statute. See also United States v Gonzalez (1986, CA9 Cal) 800 F2d 895 , involving an unloaded gun, wherein the court stated that 18 U.S.C.A. § 924(c) , which provides an additional punishment for, inter alia, carrying a firearm during a crime of violence, imposes no requirement that the gun (of an unspecified kind) be loaded or operable. For purposes of a statutory provision enhancing the penalty for a person who is armed with a firearm during the commission attempted commission of a felony, the court, in People v Nelums (1982) 31 Cal 3d 355, 182 Cal Rptr 515, 644 P2d 201 ,[FN75 ] held that a person is "armed with a firearm" when the weapon is inoperable if the weapon was designed to shoot and gives reasonable appearance of having a shooting capability. The court affirmed a judgment imposing the enhanced punishment o defendant even though the trial judge had excluded evidence that the firearm (of an unspecified kind) was inoperable. An amendment to another section of the statute, which made possession of the frame or receiver of a concealable weapon possession of a firearm capable of being concealed on the person, was regarded by the court as showing an apparent legislative intent to possession by an ex–felon of an inoperable concealed firearm—that is, one designed to be used as a weapon but presently incapable of being fired. The court also reasoned that similar and substantial risks of harm by a resisting victim or third person exist regardless of whether the offender's firearm is operable. Although such risks may be minimal if the firearm remains concealed, said the court, armed offenders frequently may passively display their firearms without actually using them to facilitate the commission of their offenses, and such passive display may stimulate resistance. Moreover, continued the court, the legislature reasonably could have sought to discourage persons from arming themselves with an inoperable firearm, whether or not concealed, because o the potential for harm if the firearm is ultimately displayed and used. Thus, the court concluded that even though the defendant may not have actually used his firearm, his mere act of carrying it created the additional risks of harm that fully justified an enhan penalty. The court disapproved People v Gaines (1980, 1st Dist) 103 Cal App 3d 89, 162 Cal Rptr 827 , (§ 13), to the extent that it was inconsistent with the views expressed in Nelums, adding that the Gaines court had not considered as a possible legislativ purpose the intended deterrence of possession of those firearms that appear operable either to resisting victims or to third parties. The court also pointed out that in People v Woodard (1979) 23 Cal 3d 329, 152 Cal Rptr 536, 590 P2d 391 , (§ 42), the court had merely recited operability as one of the elements of the crime without examining the operability issue. Finally, the court explaine that Gaines had relied on Woodard and that Woodard had relied on People v Jackson (1968, 2nd Dist) 266 Cal App 2d 341, 72 Cal Rptr 162 , (§ 7[d] ), which the Nelums court characterized as a case of limited precedential value because it had been decided before a 1969 amendment to the statute. § 49. Use—careless The court in the following case, involving an unspecified kind of gun, recognized that in certain specified circumstances operability was not a requirement for violation of a statute prohibiting the careless use of firearms. In Green v State (1978, Alaska) 579 P2d 14 , involving an unloaded gun, the court, reversing on other grounds a conviction of careless use of firearms, stated that a loade operable firearm (of an unspecified kind) is not a necessary element of the offense where what is charged is the pointing and aiming of the firearm at a person. § 50. Of "dangerous" or "deadly" weapon Operability was held to be a requirement, which had not been established, for violation of a statute creating an offense involving the use of a deadly weapon in the following case, where the court did not specify the kind of some of the guns in question. See also People v Shaffer (1985) 66 NY2d 663, 495 NYS2d 965, 486 NE2d 823 , later app on other grounds (3d Dept) 144 App Div 2d 182, 534 NYS2d 500 , wherein the court recognized that in order for a gun (of an unspecified kind) to be a "deadly weapon" for purposes of the offense of criminal use of a firearm in the first degree, it must be both operable and loaded with live ammunition. Reversing a conviction of criminal use of a firearm in the first degree, the court, in People v Amato (1984, 2d Dept) 99 App Div 2d 495, 470 NYS2d 441 , (§ 17), held that (1) the crime required the use of a deadly weapon; (2) in order for a gun to be considered deadly, it must be proven to have been loaded and operable; and (3) there was no proof that a loaded and operable firearm was used. Some of the

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guns involved in the crime were of an unspecified kind. § 51. During commission of crime No operability requirement was imposed by a statute providing an enhanced penalty for using a firearm in the commission of certain crimes, according to the court in the following case, where the kind of gun involved was not specified. See also United States v Gonzalez (1986, CA9 Cal) 800 F2d 895 , involving an unloaded gun, the court stated that 18 U.S.C.A. § 924(c) , which provides an additional punishment for, inter alia, using a firearm during a crime of violence, imposes no requirement that the gun (of an unspecified kind) be loaded or operable. A state statute providing additional punishment for using a firearm in the commission of certain crimes was held to impos requirement on the state either to produce the gun or to prove that it was operable, in People v Williams (1976, 4th Dist) 56 Cal App 3d 253, 128 Cal Rptr 408 , the court affirming robbery convictions with the enhanced sentences. The gun (of an unspecified kind) allegedly used was not found or offered as evidence. The defendant contended that the evidence did not support the application of the enhanced se provision because the state had not proved that the weapon used was a firearm, as distinguished from other deadly weapon implements merely giving the appearance of deadly weapons. Finding implicit in that contention the argument that the state had prove that the firearm was operable, the court rejected the argument on the authority of People v Hayden (1973, 3rd Dist) 30 Cal App 3d 446, 106 Cal Rptr 348 , (§ 18[a] ). The court also stated that the defendant's reliance on People v Torres (1971, 4th Dist) 19 Cal App 3d 724, 97 Cal Rptr 139 , (§ 18[a] ), was misplaced, since the comments in Torres concerning an "operable firearm" were unnecessary to the decision and were intended to place on the state the burden of proving the operability of a firearm in order to make a prima facie case. § 52. Other or unspecified offense [Cumulative Supplement] According to the court in the following case involving an unspecified kind of gun, operability was not a requirement for violation of a statute making it an offense to fail to produce a firearm owner's identification card. The fact that the gun (of an unspecified kind) taken from the defendant was not operable was not a defense to a charge of fail produce a state firearm owner's identification card, held the court, in People v Thompson (1973, 1st Dist) 12 Ill App 3d (abstract) 807, 299 NE2d 76 , affirming the conviction, as modified on other grounds, without further discussion of the point. See People v Simmons (1984) 125 Misc 2d 118, 479 NYS2d 135 , involving the application of a city administrative code rather than a state statute, wherein the court nevertheless stated that if a weapon is mechanically defective or incapable of being fired without repair or reconstruction, it is inoperable and, as a matter of law, not a weapon with the meaning of the state penal statute governing firearms and other dangerous weapons. CUMULATIVE SUPPLEMENT Cases: Inoperable pellet gun that juvenile allegedly possessed on school premises was not a "firearm," "handgun," or "deadly weapon" under statutes prohibiting possession of firearms on school premises, unlawful carrying of handguns, and disorderly conduct, an thus, there existed no underlying crime on which to base allegation of violation of statute prohibiting retaliation against a person "who the actor knows intends to report the occurrence of a crime," in juvenile delinquency proceeding arising from incident in which juvenile allegedly threatened to harm person who saw juvenile with pellet gun on school premises; pellet gun propelled pellets by compressed air rather than by use of energy generated by an explosion or burning substance, and there was no evidence that the inoperable gun was capable of causing serious bodily injury. V.T.C.A., Penal Code §§ 1.07 (a)(17), 36.06 , 42.01 (a)(8), 46.01 (3),(5), 46.02 , 46.03 . In re K.H., 169 S.W.3d 459 (Tex. App. Texarkana 2005) . [Top of Section] [END OF SUPPLEMENT] RESEARCH REFERENCES

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West's Key Number Digest West's Key Number Digest, Weapons West's Key Number Digest, Weapons West's Key Number Digest, Weapons West's Key Number Digest, Weapons West's Key Number Digest, Weapons West's Key Number Digest, Weapons West's Key Number Digest, Weapons West's Key Number Digest, Weapons West's Key Number Digest, Weapons West's Key Number Digest, Weapons West's Key Number Digest, Weapons West's Key Number Digest, Weapons West's Key Number Digest, Weapons West's Key Number Digest, Weapons West's Key Number Digest, Weapons

4 6 7 8 10 12 14 17(1) 17(2) 17(3) 17(4) 17(5) 17(6) 17(7) 17(8)

Primary Authority 18 U.S.C.A. §§ 921 -924 18 U.S.C.A. Appx § 1202 26 U.S.C.A. §§ 5801 -5862

A.L.R. Library Index to Annotations, Attempt to Commit Crime Index to Annotations, Criminal Law Index to Annotations, Deadly Weapon Index to Annotations, Defenses Index to Annotations, Impossibility Index to Annotations, Weapons and Firearms Cigarette Lighter as Deadly or Dangerous Weapon, 22 A.L.R.6th 533 Dog as Deadly or Dangerous Weapon for Purposes of Statutes Aggravating Offenses Such as Assault and Robbery, 124 A.L.R.5th 657 What Constitutes "Constructive Possession" of Unregistered or Otherwise Prohibited Weapon Under State Law, 88 A.L.R.5th 121 Stationary object or attached fixture as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault, robbery, or homicide, 8 A.L.R.5th 775

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Criminal law: "official statement" mistake of law defense, 89 A.L.R.4th 1026 Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507 What amounts to "control" under state statute making it illegal for felon to have possession or control of firearm or other dangerous weapon, 66 A.L.R.4th 1240 Sufficiency of evidence of possession in prosecution under state statute prohibiting persons under indictment for, or convicted of, crime from acquiring, having, carrying, or using firearms or weapons, 43 A.L.R.4th 788 Construction and application of state statute governing impossibility of consummation as defense to prosecution for attempt to commit crime, 41 A.L.R.4th 588 Sufficiency of evidence as to nature of firearm in prosecution under state statute prohibiting persons under indictment for, or convicted of, crime from acquiring, having, carrying, or using firearms, 37 A.L.R.4th 1179 What constitutes "dangerous weapon" under statutes prohibiting the carrying of dangerous weapons in motor vehicle, 2 A.L.R.4th 1342 Admissibility, in criminal case, of results of residue detection test to determine whether accused or victim handled or fired gun, 1 A.L.R.4th 1072 Robbery by means of toy or simulated gun or pistol, 81 A.L.R.3d 1006 Comment Note.—Impossibility of consummation of substantive crime as defense in criminal prosecution for conspiracy or attempt to commit crime, 37 A.L.R.3d 375 Validity and construction of gun control laws, 28 A.L.R.3d 845 Intent to do physical harm as essential element of crime of assault with deadly or dangerous weapon, 92 A.L.R.2d 635 Offense of carrying concealed weapon as affected by manner of carrying or place of concealment, 43 A.L.R.2d 492 Validity, Construction, and Application of 18 U.S.C.A. § 922(k), Proscribing Possession of Firearm That Has Had Importer's or Manufacturer's Serial Number Removed, 17 A.L.R. Fed. 2d 685 Due Process Defense to Possession of Unregistered Weapon Under 26 U.S.C.A. § 5861(d), 9 A.L.R. Fed. 2d 391 What constitutes actual or constructive possession of unregistered or otherwise prohibited firearm in violation of 26 U.S.C.A. § 5861, 133 A.L.R. Fed. 347 Construction and application of 18 U.S.C.A. § 922(e), prohibiting delivery of firearms to common carrier, 125 A.L.R. Fed. 613 Propriety of convicting defendant of separate offenses or of imposing consecutive sentences, under National Firearms Act (26 U.S.C.A. §§ 5861, 5871), where defendant has engaged in same type of conduct involving weapon to which silencer was attached, 85 A.L.R. Fed. 169

Legal Encyclopedias Am. Jur. 2d, Weapons and Firearms §§ 2 , 15 , 16 , 29 , 30

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Treatises and Practice Aids Torcia, Wharton's Criminal Law, 14th Ed

Trial Strategy Firearms Identification, 29 Am. Jur. Proof of Facts 65 Unloaded Gun Litigation, 30 Am. Jur. Trials 1 Defending Minor Felony Cases, 13 Am. Jur. Trials 465

Additional References Boolean Search Query: firearm or pistol or revolver or handgun or machine gun or shotgun w/25 operab! or inoperab! or (capab! or incapab! w/3 fir! or propel!) or broken or dismantled or disassembled and statut! or code or rule or provision

Section 1[a] Footnotes: [FN1] All kinds of real guns are included, but not "starter pistols" or toy, simulated, or pretended guns; see the annotation at 81 A.L.R.3d 1006 , "Robbery by means of toy or simulated gun or pistol." [FN2] The covered statutes, which are directed specifically at the possession or use of weapons, are to be distinguished from those codifying or expanding a common–law crime, such as assault or aggravated assault (see Am. Jur. 2d, Assault and Battery § 53 ) and robbery or armed robbery (see Am. Jur. 2d, Robbery § 6 ). [FN3] Beyond the scope of this annotation is the construction of statutes explicitly requiring an operable gun as an element of the offense or explicitly making a broken, dismantled, or inoperable gun a matter of defense or exemption. Cases invol unloaded guns are not covered in this annotation unless the court also refers to the gun as being broken, dismantle inoperable. See the annotation, "Fact that gun was unloaded as affecting criminal responsibility," at 68 A.L.R.4th 507 . [FN4] As to excessive sentence generally, see Am. Jur. 2d, Criminal Law § 538 . Section 2[a] Footnotes: [FN5] The exact language of definitional sections of statutes may be equally crucial. See, for example, People v Thompson (1977, 1st Dist) 72 Cal App 3d 1, 139 Cal Rptr 800 , (§ 7[d] ), in which an amendment to a section defining certain weapons was regarded as indicating a change of legislative intent as to the effect of inoperability. [FN6] Compare, for example, the reasoning in Commonwealth v Layton (1973) 452 Pa 495, 307 A2d 843 , (§ 7[b] ), a defective pistol case in which operability was held required and not established, with that in Commonwealth v Ponds (1975) 236 Pa Super 107, 345 A2d 253 , (§ 35[c] ), a sawed–off shotgun case in which operability was held not a requirement for violation of a statute regarded by the court as dealing with weapons that have no peaceful purpose. [FN7] See, for example, State v Nile (1989, Me) 557 A2d 950 , (§ 24 ), wherein the court held that the purpose of a 1983 statutory amendment to the definition of a "firearm" was to remove the operability requirement from the offense of possession of a firearm by a felon.

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[FN8] See, for example, State v Smith (1977, Me) 379 A2d 722 , § 7[a] (superseded by statute as stated in State v Nile (Me) 557 A2d 950 , § 24). [FN9] See, for example, People v Hayden (1973, 3rd Dist) 30 Cal App 3d 446, 106 Cal Rptr 348 , (§ 18[a] ). [FN10] See, for example, People v Prather (1982) 121 Mich App 324, 328 NW2d 556 , (§ 8[b] ). [FN11] See, for example, People v Gaines (1980, 1st Dist) 103 Cal App 3d 89, 162 Cal Rptr 827 , § 13 (disapproved by People v Nelums, 31 Cal 3d 355, 182 Cal Rptr 515, 644 P2d 201 , § 48) and (superseded by statute on other grounds as stated in People v Villalobos (2nd Dist) 181 Cal App 3d 310, 226 Cal Rptr 410 , op withdrawn by order of ct), wherein the court stated that the presumption or inference of operability is eminently reasonable, for it may logically be assumed that a gun used or held in such a manner as though it were operable and capable of inflicting injury or death was in fact operable, and persons who possess the specialized instruments of violence are ordinarily persons who intend to use them. [FN12] State v Gantt (1986) 101 NJ 573, 503 A2d 849 , (§ 18[a] ). [FN13] Burnside v State (1913) 105 Miss 408, 62 So 420 , (§ 10[b] ). [FN14] United States v Drasen (1988, CA7 Ill) 845 F2d 731 , (§ 27 ). [FN15] Thornton v State (1975, Tex Crim) 529 SW2d 539 , (§ 35[a] ). [FN16] United States v Smith (1973, CA3 Mo) 477 F2d 399 , (§ 38[a] ). Section 2[b] Footnotes: [FN17] People v Harvin (1984) 126 Misc 2d 775, 483 NYS2d 913 (disagreed with on other grounds by multiple cases as stated in People v Escalera, 1989 NY App Div LEXIS 6571, withdrawn, reported at (NY City Crim Ct) 143 Misc 2d 779, 541 NYS2d 707 ). The same court also declared that an information must allege in nonhearsay form, by facts of an evidentiary natu operability of the firearm, which the instant information failed to do. [FN18] People v Ramsey (1986, 2d Dept) 124 App Div 2d 835, 508 NYS2d 553 . [FN19] See, for example, Rouse v United States (1978, Dist Col App) 391 A2d 790 (15 seconds). [FN20] Prock v State (1975, Okla Crim) 542 P2d 522 . [FN21] Dilworth v State (1980, Okla Crim) 611 P2d 256 . [FN22] Nelson v State (1984, Okla Crim) 687 P2d 744 . [FN23] Rosenfeld v Dunham (1987, CA2 NY) 820 F2d 52 (applying New York law) . [FN24] United States v Polk (1986, CA8 Mo) 808 F2d 33 (from defendant's postarrest statement indicating that he had armed himself because he feared for his life, jury could have inferred that he knew that gun was capable of firing); and Jennings v State (1982, Okla Crim) 643 P2d 643 (operability was shown by defendant's testimony that he had intended to kill some dogs with the gun). [FN25] State v Omo (1967) 199 Kan 167, 428 P2d 768 (fact that defendant twice sought to conceal pistol gave rise to inference as to its prohibited character).

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[FN26] People v Burdash (1984, 3d Dept) 102 App Div 2d 948, 478 NYS2d 89 . [FN27] See, for example, Booker v Engle (1981, SD Ohio) 517 F Supp 558 (applying Ohio law) , wherein the court also stated that such "hard evidence" as test results, a firing demonstration, or the like was not required. [FN28] State v Adkins (1973, Columbiana Co) 40 Ohio App 2d 473, 69 Ohio Ops 2d 416, 320 NE2d 308 , app dismd. [FN29] See, for example, State v Cartwright (1966) 246 Or 120, 418 P2d 822 , cert den 386 US 937, 17 L Ed 810, 87 S Ct 961 . [FN30] See, for example, Benson v State (1982, Wyo) 640 P2d 83 , cert den 456 US 1006, 73 L Ed 1301, 102 S Ct 2297 . [FN31] Tolbert v State (1952) 157 Tex Crim 101, 246 SW2d 986 . [FN32] See, for example, Commonwealth v Layton (1973) 452 Pa 495, 307 A2d 843 . [FN33] Commonwealth v Holguin (1978) 254 Pa Super 295, 385 A2d 1346 . [FN34] State v Benevides (1981, RI) 425 A2d 77 . [FN35] See, for example, State v Rector (1931) 328 Mo 669, 40 SW2d 639 , wherein the court noted defense counsel's failure to ask the sheriff whether anything had been done to correct the operating defect while the revolver had remained in his custody. [FN36] See, for example, Sipes v United States (1963, CA8 Mo) 321 F2d 174, 63-2 USTC ¶15518 , cert den 375 US 913, 11 L Ed 150, 84 S Ct 208 and (disapproved on other grounds by Haynes v United States, 390 US 85, 19 L Ed 923, 88 S Ct 722, 68–1 USTC ¶15802, 21 AFTR 2d 1781), wherein the court emphasized the presence of such testimony. [FN37] See, for example, United States v Alverson (1982, CA9 Nev) 666 F2d 341 (disagreed with on other grounds by United States v Villano (CA10 Colo) 797 F2d 1547 , reh gr, en banc (CA10) 803 F2d 580 , on reh, en banc (CA10 Colo) 816 F2d 1448 ). [FN38] See, for example, People ex rel. Di Buono v Haskins (1948) 190 Misc 888, 76 NYS2d 636 . [FN39] Commonwealth v Rhodes (1986) 21 Mass App 968, 489 NE2d 216 , review den 397 Mass 1102, 492 NE2d 98 . [FN40] Bowman v Commonwealth (1949) 309 Ky 414, 217 SW2d 967 . [FN41] Commonwealth v Raedy (1987) 24 Mass App 648, 512 NE2d 279 , review den 401 Mass 1101, 517 NE2d 1289 . [FN42] United States v Catanzaro (1973, DC Conn) 368 F Supp 450 . Section 3[a] Footnotes: [FN43] For classification purposes, "possession" is used broadly here to include ownership, custody, control, and receipt. Section 3[b] Footnotes: [FN*] For classification purposes, "possession" is used broadly here to include ownership, custody, control, and receipt. [FN44] See also Re Appeal No. 1124 etc. (1975) 27 Md App 468, 340 A2d 338 , wherein the court, reversing on other grounds an adjudication of juvenile delinquency by reason of the illegal possession of a handgun, stated for the guidance

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of the parties on a possible retrial that there was a very real issue in the case as to whether the gun, characterized by a police officer as "inoperable," was a "handgun" within the meaning of the governing statute. Although the state argued that not much was required to make the gun operable, the court noted that no expert witness had been called and that it did now know what, if any, parts were missing or how much or little would be required by way of repairs or substitute parts to make the gun operable. Section 3[c] Footnotes: [FN*] For classification purposes, "possession" is used broadly here to include ownership, custody, control, and receipt. Section 6 Footnotes: [FN45] But see United States v Gometz (1989, CA7 Ill) 879 F2d 256, 28 Fed Rules Evid Serv 197 , (§ 5 ), reh den, en banc (CA7) 1989 US App LEXIS 14149 and cert den (US) 107 L Ed 768, 110 S Ct 752 , wherein the court held that the defendant's defective homemade zip gun was an object designed or intended to be used as a dangerous weapon in violation of 18 U.S.C.A. § 1791 and that functionality was not a prerequisite for violation of the statute. Section 7[a] Footnotes: [FN46] See also Williams v State (1981, Ala App) 400 So 2d 427, 37 ALR4th 1174 , (§ 35[b] ), cert den (Ala) 400 So 2d 430 , involving a statute providing that no person who has been convicted of committing or attempting to commit a crim violence shall own a pistol or have one in his possession or under his control, wherein the court held that the par disassembled 16–gauge shotgun found in the defendant's possession did not constitute a "pistol." [FN47] But see State v Hash (1978) 34 Or App 281, 578 P2d 482 , involving the defendant's possession of a.32–caliber revolver of pre–World War II vintage that was capable of being fired, although the defendant testified that he believed device to be inoperable, wherein the court stated that a.32–caliber revolver that has every appearance of being a working gun is a firearm within the meaning of a statute prohibiting an ex–convict to have possession of a concealable firearm. Section 7[b] Footnotes: [FN48] This case was factually distinguished in Commonwealth v Yaple (1976) 238 Pa Super 236, 357 A2d 617 , (§§ 42 , 45[a] ), Commonwealth v Holguin (1978) 254 Pa Super 295, 385 A2d 1346 , (§ 9[a] ), and Commonwealth v Ponds (1975) 236 Pa Super 107, 345 A2d 253 , (§ 35[c] ). Section 7[d] Footnotes: [FN49] See People v Thompson (1977, 1st Dist) 72 Cal App 3d 1, 139 Cal Rptr 800 (this subsection). [FN50] This case was distinguished in People v Favalora (1974, 1st Dist) 42 Cal App 3d 988, 117 Cal Rptr 291 , (§ 23 ). Jackson was also characterized, in People v Nelums (1982) 31 Cal 3d 355, 182 Cal Rptr 515, 644 P2d 201 , (§ 48 ), as a case of limited precedential value because it had been decided before the 1969 amendment to the statute. Section 9[a] Footnotes: [FN51] This case was factually distinguished in Curtice v United States (1985, Dist Col App) 488 A2d 917 , (§ 9[b] ). Section 9[b] Footnotes: [FN52] This case was factually distinguished in Commonwealth v Raedy (1987) 24 Mass App 648, 512 NE2d 279 , (§ 9[a] ), review den 401 Mass 1101, 517 NE2d 1289 .

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Section 10[a] Footnotes: [FN53] As to the offense of carrying a concealed "dangerous" or "deadly" weapon, see § 11 . Section 10[b] Footnotes: [FN*] As to the offense of carrying a concealed "dangerous" or "deadly" weapon, see § 11 . Section 10[c] Footnotes: [FN*] As to the offense of carrying a concealed "dangerous" or "deadly" weapon, see § 11 . [FN54] This case was factually distinguished in Burnside v State (1913) 105 Miss 408, 62 So 420 , (§ 10[b] ). Section 13 Footnotes: [FN55] In People v Reza (1981, 2nd Dist) 121 Cal App 3d 129, 175 Cal Rptr 126 , (§ 33 ), the court stated that it declined to follow Gaines. Section 14 Footnotes: [FN56] This case was factually distinguished in State v Larkin (1974, Mo App) 512 SW2d 911 , (§ 34 ). Section 16 Footnotes: [FN57] As to statutes prohibiting the use of a "dangerous" or "deadly" weapon, see § 17; as to weapons statutes referring to u during the commission of a crime, see § 18 . Section 18[a] Footnotes: [FN58] But see People v Torres (1971, 4th Dist) 19 Cal App 3d 724, 97 Cal Rptr 139 , involving the defendant's use, in a robbery and an attempted robbery, of an apparently unloaded revolver that also was difficult, but not impossible, to because of a broken latch, wherein the court, holding that under a statute imposing enhanced punishment for using a firearm in the commission of certain crimes, the state did not have to prove that the firearm used was loaded, also stated that the statute was applicable to any person who uses an operable firearm in the commission of those crimes. Torres was characterized, in People v Williams (1976, 4th Dist) 56 Cal App 3d 253, 128 Cal Rptr 408 , (§ 51 ), as an object of the defendant's misplaced reliance, since the comments in Torres concerning an "operable firearm" we unnecessary to the decision and were not intended to place on the state the burden of proving the operability of a firearm in order to make a prima facie case. Section 18[b] Footnotes: [FN59] This case was factually distinguished in Wright v State (1987) 70 Md App 616, 522 A2d 401 , (§ 9[b] ). [FN60] This case was factually distinguished in Wright v State (1987) 70 Md App 616, 522 A2d 401 , (§ 9[b] ). Section 20 Footnotes: [FN61] As to the offense of pointing a weapon by a previously convicted person, see § 21 . Section 23 Footnotes:

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[FN62] For classification purposes, "possession" is used broadly here to include ownership, custody, control, and receipt. For cases involving possession of a sawed–off or short–barreled shotgun, see § 35 . [FN63] A shotgun is assumed to be of standard length unless characterized as sawed–off or short–barreled in the court's opinion. As to sawed–off or short–barreled shotguns, see §§ 35 - 37 . Section 28[a] Footnotes: [FN64] For classification purposes, "possession" is used broadly here to include ownership, custody, control, and receipt. Section 28[b] Footnotes: [FN*] For classification purposes, "possession" is used broadly here to include ownership, custody, control, and receipt. [FN65] This case was factually distinguished in United States v Cosey (1965, ED La) 244 F Supp 100 , (§ 35[a] ), and in United States v Lauchli (1966, CA7 Ill) 371 F2d 303, 67-1 USTC ¶15727 , (§ 40 ). Section 30 Footnotes: [FN66] But see United States v Rouse (1972, CA5 Ala) 462 F2d 126 , wherein the court, although reversing on other grounds a conviction of possessing a firearm after conviction of a felony, in violation of 18 U.S.C.A. Appx. § 120 summarily held that it was a jury question whether the shotgun purchased by the defendant was sufficiently opera convertible to constitute a firearm and that the trial judge had properly instructed the jury on that issue. Section 35[a] Footnotes: [FN67] For classification purposes, "possession" is used broadly here to include ownership, custody, control, and receipt. For cases involving possession of a sawed–off or short–barreled rifle, see §§ 23 and 24 . [FN68] This case was factually distinguished in Campbell v State (1982, Tex App Amarillo) 633 SW2d 592 , (§ 23 ). Section 35[b] Footnotes: [FN*] For classification purposes, "possession" is used broadly here to include ownership, custody, control, and receipt. For cases involving possession of a sawed–off or short–barreled rifle, see §§ 23 and 24 . Section 35[c] Footnotes: [FN*] For classification purposes, "possession" is used broadly here to include ownership, custody, control, and receipt. For cases involving possession of a sawed–off or short–barreled rifle, see §§ 23 and 24 . Section 35[d] Footnotes: [FN*] For classification purposes, "possession" is used broadly here to include ownership, custody, control, and receipt. For cases involving possession of a sawed–off or short–barreled rifle, see §§ 23 and 24 .

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[FN69] This case was factually distinguished in People v Theobald (1976, 3d Dist) 43 Ill App 3d 897, 1 Ill Dec 925, 356 NE2d 1258 , (§ 35[a] ). Section 38[a] Footnotes: [FN70] For classification purposes, "possession" is used broadly here to include ownership, custody, control, and receipt. [FN71] This case was factually distinguished in Commonwealth v Rhodes (1986) 21 Mass App 968, 489 NE2d 216 , (§ 9[b] ), review den 397 Mass 1102, 492 NE2d 98 . Section 38[b] Footnotes: [FN*] For classification purposes, "possession" is used broadly here to include ownership, custody, control, and receipt. Section 41[a] Footnotes: [FN72] For classification purposes, "possession" is used broadly here to include ownership, custody, control, and receipt. Section 41[b] Footnotes: [FN*] For classification purposes, "possession" is used broadly here to include ownership, custody, control, and receipt. Section 41[c] Footnotes: [FN*] For classification purposes, "possession" is used broadly here to include ownership, custody, control, and receipt. Section 42 Footnotes: [FN73] This case was apparently regarded as obsolete in People v Nelums (1982) 31 Cal 3d 355, 182 Cal Rptr 515, 644 P2d 201 , (§ 48 ). Section 45[a] Footnotes: [FN74] As to the offense of carrying a concealed "dangerous" or "deadly" weapon, see § 46 . Section 45[b] Footnotes: [FN*] As to the offense of carrying a concealed "dangerous" or "deadly" weapon, see § 46 . Section 45[c] Footnotes: [FN*] As to the offense of carrying a concealed "dangerous" or "deadly" weapon, see § 46 . Section 48 Footnotes: [FN75] This case was factually distinguished in People v Claseman (1986) 183 Cal App 3d Supp 1, 229 Cal Rptr 453 , (§ 45[b] ). © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 81 A.L.R.4th 745 END OF DOCUMENT

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Š 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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