Holloman v. Com., 791826
Decision Date | 28 August 1980 |
Docket Number | No. 791826,791826 |
Citation | 221 Va. 196,269 S.E.2d 356 |
Parties | Michael Wendell HOLLOMAN v. COMMONWEALTH of Virginia. Record |
Court | Virginia Supreme Court |
Lawrence E. Blake, Prince George, for appellant.
Alexander E. Conlyn, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.
Before CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ., and HARMAN, Senior Judge.
Indicted for rape, and for using or attempting to use "a pistol, shotgun, rifle or other firearm while committing or attempting to commit rape" in violation of Code § 18.2-53.1, defendant Michael Wendell Holloman pled guilty to the former charge and not guilty to the latter. Subsequently, he was convicted of both by the trial court sitting without a jury and sentenced on the latter charge to a term of one year in the penitentiary. The sole issue on appeal is whether the instrument in defendant's possession during commission of the rape was a "firearm" so as to constitute a violation of the foregoing statute. *
The object in question, part of the record on appeal, appears in size, weight and shape to be a .45 caliber automatic pistol. Testimony showed it fires BBs by the force of a spring, not by gunpowder. Markings on the black weapon indicate it is a .177 caliber "Marksman Repeater" manufactured in "Los Angeles 25, Calif."
Noting that penal statutes must be strictly construed against the Commonwealth and that the statute in issue does not define the term "firearm," defendant contends the evidence is insufficient to convict. He argues that because the instrument used was a spring-operated BB gun, it is not a "firearm." Citing a dictionary definition and certain foreign cases, defendant argues a "firearm" is a weapon that expels a projectile by force of gunpowder. See Black's Law Dictionary 570 (5th ed. 1979). He contends that weapons not activated by "explosive force" but by mechanical means, such as springs, are not "firearms" within the meaning of § 18.2-53.1. We disagree.
Even though any ambiguity or reasonable doubt as to the meaning of a penal statute must be resolved in favor of an accused, nevertheless a defendant is not entitled to benefit from an "unreasonably restrictive interpretation of the statute." Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979). At the time the statute in issue was first enacted in 1975, we had already defined "firearm" in another context in Johnson v. Commonwealth, 209 Va. 291, 163 S.E.2d 570 (1968). There, an indictment for attempted robbery charged defendant with assault on the victim by "the presenting of firearms and other violence" which put the victim in bodily fear during a felonious attempt to steal his goods and chattels. 209 Va. at 293, 163 S.E.2d at 572. Defendant used a revolver having a blocked barrel and firing only blank cartridges. He argued the instrument was not a firearm as alleged in the indictment and offered an instruction, refused by the trial court, on the theory that to be a firearm a weapon must be capable of throwing a projectile or missile to a distance by force of gunpowder or some other explosive.
Sustaining the trial court's refusal of the instruction, this Court held the instrument was a firearm within the meaning of the indictment. Pointing out the victim did not know what kind of pistol was being used, the Court said that a sensible victim of a holdup "acts on appearances" and "is not required to know whether the gun pointed at him is loaded or whether it shoots bullets or blanks." 209 Va. at 296, 163 S.E.2d at 574. The Court noted that a toy pistol has been held sufficient to sustain a charge of robbery with a firearm.
By analogy the same reasoning applies here. The purpose of Code § 18.2-53.1, keyed to...
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