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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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