Com. v. Bartholomew

• Decision Date: 05 July 1950
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. BARTHOLOMEW et al.

Page 551

93 N.E.2d 551 326 Mass. 218 COMMONWEALTH
v.
BARTHOLOMEW et al. Supreme Judicial Court of Massachusetts, Suffolk. Argued May 1, 1950.
Decided July 5, 1950.

J. F. McAuliffe, Asst. Dist. Atty., Boston, for Commonwealth.

E. L. Schwartz, Boston, M. L. Glazer, Boston, for defendants.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

WILLIAMS, Justice.

This case is before us on a substitute consolidated bill of exceptions of the defendants, who have been found guilty on an indictment which charges that 'on the ninth day of August in the year of our Lord one thousand nine hundred and forty-nine [they] did unlawfully possess a machine gun as defined in s. 121 of c. 140 of the Tercentenary Edition of the General Laws of the said Commonwealth, without permission under s. 131 of the said c. 140.'

[326 Mass. 219] There was evidence that the defendants were in joint possession of a 'Thompson sub-machine gun of 45 calibre, which is a small arms calibre, * * * designed for rapid fire of the recoil action type capable of a maximum rate of fire of 350 to 400 rounds of ammunition per minute.' The gun had no firing pin and in that condition was 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 he inserted a firing pin' in the gun and fired it. The defendants excepted to the denial of their motions for directed verdicts presented at the conclusion of the evidence.

Page 552

It is their contention that in the absence of the firing pin, without which the gun could not be fired, the gun was not a machine gun within the meaning of G.L. (Ter.Ed.) c. 140, § 121, as amended, which provides that 'Any gun of small arm calibre designed for rapid fire and operated by a mechanism, or any gun which operates automatically after the first shot has been fired, either by gas action or recoil action, shall be deemed to be a machine gun for the purposes of * * * sections [one hundred and twenty-two to one hundred and twenty-nine, inclusive], and of sections one hundred and thirty-one and one hundred and thirty-one B.' The offence of having in possession a machine gun is set forth in G.L. (Ter.Ed.) c. 269, § 10, as most recently amended by St.1937 c. 250, § 1, wherein it is also made an offence for a person to carry 'on his person or under his control in a vehicle, a pistol or revolver, loaded or unloaded, without permission under section one hundred and thirty-one of chapter one hundred and forty.' The intent of section 10, which also penalizes the carrying of dirk knives, metallic knuckles and certain other dangerous weapons, is to protect...