United States v. Fisher
| Decision Date | 26 November 1965 |
| Docket Number | No. 22056.,22056. |
| Citation | 353 F.2d 396 |
| Parties | UNITED STATES of America, Appellant, v. George FISHER, as Claimant of One 1954 Cadillac Sedan, Motor No. XXXXXXXXX, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Macon L. Weaver, U. S. Atty., Birmingham, Ala., for appellant.
L. Drew Redden and Ralph Coleman and Rogers, Howard, Redden & Mills, Birmingham, Ala., for appellee.
Before TUTTLE, Chief Judge, and RIVES and GEWIN, Circuit Judges.
The United States appeals from a judgment of the trial court holding that the vehicle described was not subject to forfeiture. This judgment was based upon the court's determination that the weapon found in the vehicle was not of the kind required by the Federal statutes to be registered. The parties agreed, in a pretrial order, that the only issue was whether the weapon at issue "meets the definition of `firearm' contained in 26 U.S.C. 5848."
The weapon involved is a small gun with the handle of a pistol, with a barrel 12¼ inches long, having a smooth bore designed for firing a .410 gauge shotgun shell, and having a shotgun sight and having stamped by the manufacturer "For .410 gauge only."
The applicable statute which requires registration "certain firearms" contains the following definition:
It is apparent from this definition that the weapon is subject to the Act if it is either a shotgun of the type described above or if it is any other weapon except a pistol. Thus if it is a pistol, it is exempt.
A further definition demonstrates that it is not a shotgun within the definition of the Act, because such term applies only to guns that are designed to be fired from the shoulder.
The definition section of "any other weapon" is as follows:
"(5) Any other weapon — The term `any other weapon\' means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, but such term shall not include pistols or revolvers or weapons designed, made or intended to be fired from the shoulder and not capable of being fired with fixed ammunition."
Thus, it is clear that in order to be covered by this statute, the gun must fall neither under the category of "shotgun" nor under the category of "pistol or revolver."
In his approach to the case here, the claimant contends that the statute should be construed strictly in order to avoid a forfeiture in the nature of a condemnation of the automobile seized. This statute, however, is not a forfeiture statute, it is a taxing statute. The forfeiture provisions arise under a different section of the National Firearms Act, which permits the forfeiture of any vehicle used in transporting contraband articles, that is, articles as to which the taxing statutes have not been complied with. We think the rule of construction is the same as that which applies to any federal revenue statute, that is, that the court must seek to ascertain what was the intent and purpose of Congress in classifying the different kinds of firearms for tax purposes.
In the trial court the government produced witnesses who testified that the weapon in controversy was not a pistol, but was considered either as a shotgun or, at least, something different from a pistol. The claimant produced witnesses, experienced with guns, who testified that they considered this weapon a pistol. It is plain, however, that those experts who considered it a pistol gave consideration to the fact that it could be converted for use by firing ball cartridges, although it was not, in the shape in which it was presented to the court, suitable for such use.
By using the term "any other weapon" Congress must have intended to cover a weapon that was neither a shotgun (defined for the purpose of this statute as designed to be fired from the shoulder) nor a pistol (not defined in the statute). It can hardly be doubted that the weapon we are here dealing with falls between what is ordinarily known as a shotgun and what is ordinarily known as a pistol. It has the characteristics of a pistol in that it is hand-fired, but it has the characteristics of a shotgun in that it does not fire fixed ball ammunition but fires shotgun ammunition.
The government points to Internal Revenue Regulations and Treasury Department rulings which indicate that from early days the Treasury Department has considered this type of weapon as falling within some category other than shotgun or pistol. As far back as 1934, Article XX of Regulations 88, provided, (Int. Rev.Bull. CBXIII). Ever since that time this weapon has been placed in a separate category for tax purposes, both for the manufacturers' tax and the dealers' tax.
Congress has authorized a special tax classification for guns recognized as "any other weapon" and it is clear from Report No. 914 of the Committee on Ways and Means to accompany H.R. 4029, 86th Congress, 1st Sess., that Congress acted in light of the outstanding Treasury Regulations dealing with this type of weapon in fixing the tax on what was classed as "other weapons."
The statute itself, at Section 5847, expressly provides:
"The Secretary or his delegate shall prescribe such regulations as may be necessary for carrying the provisions of this chapter into effect."
The Chapter referred to is Chapter 53 of the Internal Revenue Code, which may be cited as the "National Firearms Act."
Pursuant to this authority, regulations promulgated by the United States Treasury Department and contained in 26 C.F.R. Part 179, included a definition of "any other weapon," under Section 179.11, as follows:
"Any other weapon shall mean any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, but such term shall not include...
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...Co., 362 F.2d 305, 308 (9th Cir. 1966), cert. denied, 385 U.S. 1024, 87 S. Ct. 742, 17 L.Ed.2d 673 (1967); United States v. Fisher, 353 F.2d 396, 398-399 (5th Cir. 1965); Whirlwind Mfg. Co. v. United States, 344 F.2d 153, 156 (5th Cir. 1965). See also Nutt v. Commissioner of Internal Revenu......
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