United States v. Tot, 197-c.

• Decision Date: 03 January 1941
• Docket Number: No. 197-c.,197-c.
• Citation: United States v. Tot, 36 F.Supp. 273 (D. N.J. 1941)
• Parties: UNITED STATES v. TOT.
• Court: U.S. District Court — District of New Jersey

36 F. Supp. 273

UNITED STATES v. TOT.

No. 197-c.

District Court, D. New Jersey.

January 3, 1941.

William F. Smith, U. S. Atty., of Trenton, N. J., and Irwin L. Langbein, Sp. Asst. to Atty. Gen., for the Government.

George R. Sommer, of Newark, N. J., for defendant.

WATSON, District Judge.

This case is before the Court for determination of a demurrer to an indictment charging the defendant with violation of 15 U.S.C.A. § 902(f).

The indictment charges that the defendant had been convicted of certain crimes of violence and thereafter knowingly, unlawfully and feloniously received a firearm, to wit, a .32 calibre Colt automatic pistol which had been shipped and transported in interstate commerce.

The defendant contends that the demurrer should be sustained on two grounds: first, that the statute here involved, the Federal Firearms Act, 15 U.S.C.A. § 901 et seq., is unconstitutional in that it violates the second amendment to the Constitution; and, second, that the pistol involved is not a firearm within the definition of the statute.

On November 15, 1938, this defendant was indicted in the District Court for the District of New Jersey for a violation of the Federal Firearms Act. The defendant filed a petition requesting the suppression of certain evidence and the return of the seized pistol which is here involved, contending that the seizure was in violation of the fourth and fifth amendments to the Constitution and that the Federal Firearms Act is unconstitutional. In disposing of the petition in a well-reasoned opinion, Judge Forman ruled that the Federal Firearms Act did not violate the second amendment to the Constitution and denied the prayer of the petition. United States v. Tot, D.C., 28 F.Supp. 900. Thereafter, the United States obtained an indictment superseding the indictment which was before Judge Forman. This superseding indictment is the one here under consideration. Under these circumstances, I shall not consider the constitutional question, but shall follow the ruling by Judge Forman wherein he held the Act to be constitutional. See Brusselback v. Cago Corp., D.C., 24 F. Supp. 524; American Scantic Line, Inc. v. United States, D.C., 27 F.Supp. 271.

The Act, 15 U.S.C.A. § 901(3), provides that "The term `Firearm' means any weapon, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosive and a firearm muffler or firearm silencer, or any part or parts of such weapon."

The defendant contends that the firearm defined by the Act is a weapon and a muffler or any part or parts of that...