State v. Umbrello
| Decision Date | 30 June 1965 |
| Citation | 106 N.H. 336,211 A.2d 400 |
| Parties | STATE v. Joseph F. UMBRELLO, Jr. |
| Court | New Hampshire Supreme Court |
William Maynard, Atty. Gen., and Peter W. Smith, Concord, for the State.
Bell, Bell & Shortlidge, R. J. Shortlidge, Jr., Keene, for defendant.
The question to be decided in this case is whether a loaded tear gas pencil is a loaded pistol within the meaning of RSA ch. 159. The defendant is charged with the violation of RSA 159:4 which reads as follows: A pistol as used in this statute is defined as follows: RSA 159:1.
The tear gas pencil is less than six inches in length and in appearance resembles a fountain pen and has a clip on it similar to the clip of a pencil or fountain pen. At the time the tear gas pencil was taken from the defendant it was loaded with a tear gas shell and concealed upon his person. A search of his person and his vehicle revealed no shells, cartridges or ammunition other than the tear gas shell. The defendant had no license to carry a pistol or firearm. An expert witness for the State testified to an experiment that he made with the tear gas pencil. By using and inserting a steel adapter or zuxiliary chamber he was able to fire a .410 standard gauge shotgun shell or a 45 auto rim revolver cartridge from the tear gas pencil. The expert witness stated that in his opinion the tear gas pencil was a pistol and a firearm but conceded that it was not a firearm as defined in the National Firearms Act. 26 U.S.C.A. § 5841 et seq. The witness was in doubt whether a shotgun shell or a cartridge could be fired from the tear gas pencil without rupturing the barrel unless a steel adapter or auxiliary chamber was used as he did in his experiment.
The mere fact that this tear gas pencil resembles a fountain pen and does not look like a pistol has little significance in determining its character. People v. Anderson, 236 App.Div. 586, 260 N.Y.S. 329; Commonwealth v. Butler, 189 Pa.Super. 399, 150 A.2d 172; Scurfield v. Federal Laboratories, Inc., 335 Pa. 145, 6 A.2d 559. In United States v. Decker, 292 F.2d 89 (6th Cir. 1961), it was held that a tear gas gun capable of firing a shotgun shell was a firearm within the meaning of the National Firearms Act, 26 U.S.C.A. §§ 5841, 5851. However, in that case experiments with the tear gas gun showed that it could fire a .410 gauge shotgun shell without rupturing the barrel or causing any structural damages thereto. In that case the court made the following pertinent comments at page 90: It was also stated that '* * * a tear gas gun capable only of discharging tear gas would not be considered as a firearm.' Cf. United States v. Fogarty, 344 F.2d 475, 478 (6th Cir. 1965).
On the evidence in the present case the State failed to prove that the tear gas...
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