Cite as U.S. v. Anderson, Transcript of decision, No. 15951,
(D.Colo. May 6, 1959)

               IN THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF COLORADO

UNITED STATES OF AMERICA,

Plaintiff,

     -vs-                                         CRIMINAL
                                                  ACTION 
DAVID LEE ANDERSON,                               NO. 15951

Defendant.

     Proceedings had before HONORABLE WILLIAM LEE KNOUS, Chief
Judge, United States District Court, District of Colorado, in
Denver, Colorado, at the Post Office Building, in Courtroom A, on
May 6, 1959, at 2:00 o'clock, p. m. 

APPEARANCES:

     HONORABLE JACK K. ANDERSON, Assistant United States Attorney,
District of Colorado, appearing for the Government.

     LEW E. MC CLAIN, ESQ., and ROLLIE R. ROGERS, ESQ., Attorneys
at Law, Denver, Colorado, appearing for the Defendant.




     THE COURT: Ladies and gentlemen of the Jury, the defense have
announced and the record shows that they have no further testimony
to offer.  The Government likewise has indicated in Chambers that
they have no rebuttal testimony to offer.  The defendant has made
a motion for acquittal based among other things upon the contention
that under the uncontradicted and undisputed evidence here this
alleged weapon, Government's Exhibit 1, is not capable of being
fired and, hence, that it is not a firearm within the meaning of
the statute under which the information is drawn.

     Now, that statute defines a firearm as meaning "**** a shotgun
or rifle having a barrel of less than 18 inches in length, or any
other weapon, except a pistol or revolver, from which a shot is
discharged by an explosive if such weapon is capable of being
concealed on the person ****."

     Now, under the same statute a shotgun is defined as being
"**** a weapon designed or redesigned, made or remade, and intended
to be fired from the shoulder and designed or redesigned and made
or remade to use the energy of the explosive in a fixed shotgun
shell to fire through a smooth bore either a number of ball shot or
a single projectile for each single pull of the trigger."

     Now, it is very obvious from the testimony which you recall
from all of the witnesses that the firing pin is missing from this
particular Exhibit 1 here, that it was not in the gun at the time
it was remade or altered by the defendant nor when he was arrested
and the possession of the gun was taken by the officers and that
this inherent mechanical defect made it impossible to fire without
extrinsic means.  The implications under this Federal Statute it
seems to me under the definition of "shotgun" are that the gun when
remade it must be capable of using the energy of the explosive in
the fixed shotgun shell to fire through a smooth bore and so forth
which necessarily implies that there be some mechanism to bring
about the firing of the shotgun shell to make a firearm or a
shotgun within the definition of the Statute.

     It appears that this question has never come up in the Federal
Court before, but under state laws which define firearms it has
been held by the courts, and I am reading from a decision in a case
in New York in 106 New York Supplement Second 515 at page 520,
People vs. DeBernardo, "The law is well settled that a mechanically
defective pistol or revolver, incapable of ejecting bullets
therefrom, cannot be made the basis of an unlawful possession of a
firearm."

     So, I am satisfied that as a matter of law the Government has
failed to maintain the burden placed upon them by law to establish
beyond a reasonable doubt the essential elements of the offense
charge.  I debated sometime about whether to submit the matter on
an instruction to that effect, but, naturally, if I instructed that
the particular weapon was incapable of being fired, you would be
required to return a verdict of acquittal which would in effect
amount to a direction of the verdict, itself.

     I might mention for your information an the subject that a
different situation would attain if the gun was just unassembled or
something like that so that it could immediately be put together
and be in operating condition.  Some of the cases hold, one
particularly, if any of you are familiar with firearms, the simple
fact that a revolver cylinder won't revolve in cocking a gun but
would have to operate manually would not take away the character of
the weapon as being a firearm, but every single case that I have
found or has been presented to me by counsel holds that where the
alleged weapon is so defective because of some mechanical defect in
its structure that it cannot be fired that it does not come within
the definition of a "firearm".

     So, the motion for acquittal will be granted, and the
defendant will be acquitted, and the sureties on his bond will be
released, and the clerk will draw a proper order.