United States v. Smith, 72-1728.
Decision Date | 12 April 1973 |
Docket Number | No. 72-1728.,72-1728. |
Citation | 477 F.2d 399 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Larry SMITH, Defendant-Appellant. |
Court | U.S. Court of Appeals — Eighth Circuit |
Murry L. Randall, St. Louis, Mo., for appellant.
Robert B. Schneider, Asst. U. S. Atty., St. Louis, Mo., for appellee.
Before MATTHES, Chief Judge, ROSS and STEPHENSON, Circuit Judges.
Larry Smith appeals from his conviction, after a trial to the court, of knowingly possessing an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871. We affirm the judgment of conviction.
The firearm in question is an unserviceable Thompson submachine gun. There is no challenge to the proof of possession by Smith, but rather, he bases his appeal from his conviction on two points: First, that the welded receiver of the gun was not a firearm within the meaning of the National Firearms Act, and therefore was not required to be registered, and secondly, that the Government did not prove that Smith had knowledge that the inoperative gun had to be registered.
26 U.S.C. § 5861(d) provides in pertinent part that it is unlawful "to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record;" 26 U.S.C. § 5845(a) states that "firearm" as used in the Act includes machinegun; and 26 U.S.C. § 5845(b) defines machinegun as follows: "The term 'machinegun' means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." The key question in the first issue raised by the appellant then becomes whether or not the machinegun in question could be "readily restored to shoot, automatically . . . ." Since the trial court did not make a specific finding in this regard, we remanded with the request that a finding be made as to whether or not the machinegun could be readily restored to shoot automatically as provided in 26 U.S.C. § 5845(b).
The trial court then made the requested finding as follows:
We have examined the record, including the transcript of the testimony of agent Scroggie, and conclude that the proof relating to the restoration of the machinegun is exactly as described by the trial court and that this constituted "substantial evidence, taking the view most favorable to the Government, to support the fact determination by the trial court. . . ." See United...
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