Com. v. Lee

• Decision Date: 17 September 1980
• Citation: 409 N.E.2d 1311,10 Mass.App.Ct. 518
• Parties: COMMONWEALTH v. Stanton LEE.
• Court: Appeals Court of Massachusetts

Page 1311

409 N.E.2d 1311

10 Mass.App.Ct. 518

COMMONWEALTH v. Stanton LEE.

Appeals Court of Massachusetts, Suffolk.

Argued April 16, 1980.

Decided Sept. 17, 1980.

Dennis J. Kelly, Boston (Mark A. Ash, Boston, with him), for defendant.

Sharon D. Meyers, Legal Asst. to the Dist. Atty., Boston (Michael J. Traft, Asst. Dist. Atty., with her), for the Com.

Before ARMSTRONG, ROSE and PERRETTA, JJ.

PERRETTA, Justice.

The defendant appeals from his conviction under G.L. c. 140, § 129C, possession of a rifle without a firearm identification card. ¹ Because of a prejudicially erroneous jury instruction concerning the defendant's defense to the indictment, we reverse the judgment.

On September 28, 1978, Boston Detective Peter O'Malley responded to a report of a shooting incident at the Munch N' Brunch, a restaurant located in the Chinatown section of Boston. When he arrived at the scene, other police officers were already in the process of arresting five young men, one of whom was the defendant. As these young men were being escorted to and placed in a police wagon, an elderly man approached Detective O'Malley. This man pointed to the group of suspects and told O'Malley that he had seen them place a rifle in a brown box in a van parked about a block or two away. He described the rifle as long with a black barrel, a wooden stock and an ammunition clip attached under the firing mechanism. He also stated that the van was white with a red stripe and bore New York license plates. Refusing to go with Detective O'Malley and two other officers directly to the van, the man led the three officers a part of the way and then pointed them in the direction of the van. The officers proceeded in the indicated direction and saw a Ford Econoline van which matched the description they had been given by the elderly man. Peering through the windshield, the officers observed a long brown box under a bunk bed in the left section of the van. (See Commonwealth v Haefeli, 361 Mass. 271, 280, 279 N.E.2d 915 (1972), habeas corpus granted sub nom. Haefeli v. Chernoff, 394 F.Supp. 1079, see esp. 1083 n.9 (D.Mass), rev'd 526 F.2d 1314 (1st Cir. 1975) (glance through a car window does not constitute a search).) The van was towed to the police station, where the officers determined from the defendant's registration that it belonged to him. Detective O'Malley sought and obtained a search warrant for the van, and execution of the warrant produced a rifle in the long brown box, ammunition clips and loose rounds of ammunition.

General Laws, c. 140, § 129C, first par., as amended by St. 1973, c. 892, § 3, provides: "No person, other than . . . one who has been issued a license to carry a pistol or revolver or an exempt person as hereinafter described, shall own or possess any firearm, rifle, shotgun or ammunition unless he has been issued a firearm identification card . . . ." While the defendant produced no evidence to show that he had the requisite identification card to possess the rifle legally, there was evidence which put in issue the question whether the defendant was an "exempt person," as described in § 129C, par. 4(h), as amended through St. 1973, c. 892, § 4. See Commonwealth v. Jones, 372 Mass. 403, 406, 361 N.E.2d 1308 (1977); Commonwealth v. Dunphy, 377 Mass. ---, --- - --- ^a, 386 N.E.2d 1036 (1979). This exemption makes § 129C inapplicable to "(p)ossession of rifles and shotguns and ammunition therefor by nonresidents traveling in or through the commonwealth, providing that any rifles or shotguns are unloaded and enclosed in a case."

The evidence as to whether the rifle was unloaded and enclosed in a case came from Detective O'Malley's responses to the Commonwealth's questions concerning his actions after he obtained the search warrant for the van:

A: "I believe I went upstairs first and obtained some keys that were in the property of the defendant, and I went downstairs and I went into the truck, the Ford Econoline van. I went in and I seized, I took the box.

Q. "You seized the box. What did you do next?

A: "I opened the box.

Q: "What did you find?

A: "I found a 30 caliber M-1 semi-automatic rifle."

The box which Detective O'Malley opened was approximately thirty inches long, eight and one-half inches wide, and five inches deep. When asked whether the rifle he found in the box was loaded, Detective O'Malley replied, "(I)t had a large banana clip on the bottom which was removed, and there were bullets, shells, bullets inside the clip." He stated that the rifle was loaded, that the clip "was attached and part of the rifle that you have seen." When asked how the clip was attached, Detective O'Malley gave a visual demonstration.

Against this backdrop of the recited evidence, we set out in full that portion of the judge's jury charge pertaining to whether the defendant was an exempt person under § 129C, par. 4(h):

"(S)o you have a determination of fact to make here, and that is whether or not Stanton Lee was a non-resident traveling in or through the Commonwealth, and whether or not that rifle was unloaded and enclosed in a case.

"So, two questions arise in that respect. Was it loaded or unloaded? Was it in a case or not in a case? So, you would have to decide what that was, that cardboard box. Is it a case or not? You know what a case is. A case is a container. Do you think that the cardboard box is a case or do you think that the statute calls for a container that is in fact a case for a gun ? It's for you to determine. Those are questions of fact that you must determine before you are able to reach a determination of guilt or innocence in this case.

What is the meaning of that brown box, that cardboard box? Is it a case? It's for you to decide," (emphasis supplied). ²

We hold that as matter of law § 129C, par. 4(h), does not require that a rifle be enclosed in a case that is specifically manufactured as a gun case to the exclusion of all other intended uses for such a container and that, consequently, the jury instruction was incorrect. It is well established as a principle of statutory construction that "(p)enal statutes must be construed strictly 'and not extended by equity, or by the probable or supposed intention of the legislature as derived from doubtful words; but that in order to charge a party with a penalty, he must be brought within its operation, as manifested by express words or necessary implication.' . . . A penal statute is not to be extended merely by implication. . . . It is an anciently established rule in the interpretation of statutes that such a sense is to be made upon the whole statute that no clause, sentence or word shall prove superfluous, void or insignificant if by any other construction it may be made useful and pertinent. . . ." Libby v. N.Y., N.H. & H. R.R., 273 Mass. 522, 525-526, 174 N.E. 171, 173 (1930).

There is nothing ambiguous or unusual about the word "case." ³ "The language of this statute is plain, and therefore it is to be interpreted in accordance with the usual and natural meaning of the words. Condon v. Haitsma, 325 Mass. 371, 373, 90 N.E.2d 549 (1950). Commonwealth v. Krasner, 358 Mass. 727, 729, 267 N.E.2d 208 (1971)." Commonwealth v. Thomas, 359 Mass. 386, 387, 269 N.E.2d 277, 278 (1971). See also Commonwealth v. McDuffee, --- Mass. ---, --- ^b, 398 N.E.2d 463 (1979). Compare Commonwealth v. Niziolek, --- Mass. ---, --- ^c, 404 N.E.2d 643 (1980). Moreover, G.L. c. 140, § 121, conclusively demonstrates that when the Legislature intended a more limited or technical meaning to attach to specific words employed throughout §§ 122-131F of c. 140, it has explicitly said so. Further, to read § 129C, par. 4(h), as meaning simply a case, rather than mandating a gun case, neither distorts nor minimizes the control over firearms which the Legislature intended to exercise through c. 140, §§ 121-131H, and c. 269, § 10. Reading these provisions as a harmonious and comprehensive statutory scheme of gun control in the Commonwealth, it is obvious that the manifest purposes of these provisions are to prevent the temptation and the ability to use firearms to inflict harm, be it negligently or intentionally, on another or on oneself. While a requirement that a rifle be enclosed in a gun case is consistent with these goals, it cannot be said that enclosure of a rifle in a simple case is inconsistent with them. ⁴ For discussion of the scheme of gun control laws, see Commonwealth v. Jackson, 369 Mass. 904, 911, 344 N.E.2d 166 (1976); Commonwealth v. Seay, 376 Mass. ---, --- - --- ^d, 383 N.E.2d 828 (1978); Commonwealth v. Dunphy, 377 Mass. at --- - --- ^e, 386 N.E.2d 1036 (1979). Commonwealth v. Fleurant, 2 Mass.App. 250, 256-257, 311 N.E.2d 86 (1974); Commonwealth v. Landry, 6 Mass.App. --- ^f, 376 N.E.2d 1243 (1978).

Whether a case is sufficient to establish the existence of the exemption under § 129C, par. 4(h), in any particular instance is a question of fact to be answered by a fact finder under appropriate instructions in light of all the circumstances revealed by the evidence. See Commonwealth v. Bartholomew, 326 Mass. 218, 222, 93 N.E.2d 551, 553 (1950) ("whether the gun was a machine gun as defined in G.L. (Ter.Ed.) c. 140, § 121, as amended," was not a question of law for the judge but "was one of fact to be answered under appropriate instructions"); Commonwealth v. Sperrazza, 372 Mass. 667, 670, 363 N.E.2d 673 (1977) "(w)hether a gun is a 'firearm' as defined is a question of fact for the jury"). ⁵ The instruction in the present case failed to pass this question to the jury with appropriate guidance. It is the judge's obligation to state the law to the jury so that they may apply it to the facts as they determine them to be. Commonwealth v. Kelley, 359 Mass. 77, 93, 268 N.E.2d 132 (1971). Commonwealth v. Corcione, 364 Mass. 611, 618, 307 N.E.2d 321 (1974). Commonwealth v. Dunphy, 377 Mass. at --- - --- ^g, 386 N.E.2d 1036.

We cannot regard the error as harmless. The evidence...