State v. Giltner

• Decision Date: 19 June 1975
• Docket Number: No. 5659,5659
• Citation: 537 P.2d 14,56 Haw. 374
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Howard GILTNER, Defendan-Appellant.
• Court: Hawaii Supreme Court

Page 14

537 P.2d 14

56 Haw. 374

STATE of Hawaii, Plaintiff-Appellee, v. Howard GILTNER, Defendan-Appellant.

No. 5659.

Supreme Court of Hawai'i.

June 19, 1975.

Syllabus by the Court

1. The term 'dagger,' as used in HRS § 134-51 (Supp.1973), has its usual and ordinary meaning, and may be defined as a short weapon used for stabbing.

2. The term 'deadly or dangerous weapon' in the statute refers to an instrument designed primarily as a weapon, or one which has been diverted from its normal use and prepared and modified for combat purposes.

3. When a police officer cannot point to specific and articulable facts from which he could have reasonably inferred that the defendant had committed or was about to commit an offense, a stop and frisk of the defendant was constitutionally impermissible.

4. The reputation of an individual for carrying arms is not, in and of itself, a sufficient basis for a stop and frisk.

Catherine E. Agor, Deputy Public Defender, Honolulu (Donald K. Tsukiyama, Public Defender, Honolulu, with her on the briefs), for defendant-appellant.

Reina A. Grant and Clesson W. Chikasuye, Deputy Pros. Attys., Honolulu (Barry Chung, Pros. Atty., Honolulu, with them on the brief), for plaintiff-appellee.

Before RICHARDSON, C. J., KOBAYASHI, OGATA and MENOR, JJ., and LEWIS, Retired Justice, assigned by reason of vacancy.

MENOR, Justice.

The defendant (appellant herein) was found guilty of carrying a deadly weapon in violation of HRS § 134-51 (Supp.1973). He appeals from the judgment and sentence of the district court, alleging that the trial court erred in denying his motion to suppress the use in evidence of a divingtype knife recovered from his person.

We reverse for the reasons that (1) the knife seized was not a 'dagger' or a 'deadly or dangerous weapon' within the meaning of the statute, and (2) the search and seizure was constitutionally impermissible.

I

HRS § 134-51 (Supp.1973) provides in pertinent part as follows:

'Any person . . . was carries concealed upon his person or within any vehicle used or occupied by him, or who is found armed with any dirk, dagger, blackjack, slug shot, billy, metal knuckles, pistol, or other deadly or dangerous weapon, shall be fined not more than $250, or imprisoned not more than one year, or both.'

A 'dagger' is defined in Webster's Third New International Dictionary to be a short weapon used for stabbing. Examples given are the 'dirk,' which is a long straight-bladed dagger; the 'stiletto,' which is a slender dagger with a blade that is thick in proportion to its breadth; the 'poniard,' which is a dagger with a usually slender triangular or square blade; the 'anlace,' which is a tapering medieval dagger; and the 'misericord,' which is a thin-bladed medieval dagger used to give the coup de grace.

The instrument recovered by the police is a 'Sea Hunter' model diver's knife, which is standard equipment for many divers engaged in deep-sea diving. It consists of a hard rubber handle with a blade measuring slightly less than 6 1/2 inches in length, one edge being serrated for most of its length and then curving convexly to the point. Since there is no indication from the statute itself or its legislative history that the Legislature intended to enlarge the definition of 'dagger' beyond its usual and ordinary meaning, we find that the trial judge erred in concluding that the knife in question was a 'dagger' within the meaning of the statute.

Moreover, the legislative history of the Act indicates that knives generally are not covered by this particular statute. See State v. Rackle, 55 Haw. 531, 533, 523 P.2d 299, 301 (1974).

In State v. Rackle, supra, ¹ we had occasion to construe the statute under consideration. In holding that a flare gun was not a 'deadly or dangerous weapon,' we explained that what the statute proscribed was the act of carrying any of the weapons enumerated, and those closely akin to those named, as well as instruments associated with criminal activity whose sole design is to inflict death or bodily injury. The fact that an object originally designed for normal or lawful use can be perverted to a use dangerous to one attacked does not convert it into a 'deadly or dangerous weapon' within the meaning of statute. The instrument proscribed is one which was designed primarily as a weapon, or one which has been diverted from its normal use and prepared and modified for combat purposes. The diver's knife described above is not a 'deadly or dangerous weapon' within the meaning of the statute.

II

The case before us also involves a situation where two police officers on patrol, at approximately 10:30 p. m., on Seaside Avenue in the Waikiki area, were stopped by an elderly woman who complained that there was a group of men on the second floor landing of a building she had just passed who were making a lot of noise and cursing at people down on the sidewalk. She pointed in the general direction of an apartment building which the officers assumed to be the building at 351 Seaside Avenue. She appeared to be irritated and disturbed by it all, but after speaking to the police, she continued on her way. She had not pointed to any particular group of individuals, but when the police arrived at 351 Seaside Avenue, they saw the defendant and two other male companions on the second floor landing at one end of the building. There was nothing unusual about their conduct. There was none of the yelling and shouting which had been the basis for the woman's complaint. There is no evidence that these were the same individuals referred to by the...