Cite as U.S. v. Wost, 148 F.Supp. 202 (N.D.Oh. 1957)

                    UNITED STATES of America

                               v.

                     Theodore Anthony WOST.

                         Cr. No. 22124.

         United States District Court N. D. Ohio, E. D. 

                          Feb. 8, 1957.

     Sumner Canary, Dist. Atty., Cleveland, Ohio, for plaintiff.

     Charles M. Kelly, Louis A. Beery, Akron, Ohio, for defendant.

     WEICK, District Judge.

     The indictment returned by the Grand Jury charged the
defendant with possession of a Worthington 12 gauge double-barreled
shot gun, with a nine inch barrel, without having registered said
firearm with the Secretary of the Treasury or his delegate in
violation of Title 26 U.S.C.A. section 5841.

     This statute provided:

          "Every person possessing a firearm shall register, with
     the Secretary or his delegate, the number or other mark
     identifying such firearm, together with his name, address,
     place where such firearm is usually kept, and place of
     business or employment, and, if such person is other than a
     natural person, the name and home address of an executive
     officer thereof.  No person shall be required to register
     under this section with respect to a firearm which such person
     acquired by transfer or importation or which such person made,
     if provisions of this chapter applied to such transfer,
     importation, or making, as the case may be, and if the
     provisions which applied thereto were complied with."

     Defendant entered a plea of not guilty to the indictment,
waived a jury trial and was tried by the Court.

     Defendant is a 67 year old retired rubberworker living in the
outskirts of Akron.  He came to this country in 1910 from
Lithuania, enlisted in the United States Army in World War I and
served overseas in France.  He has never been in trouble before.

     He testified that he had purchased the shotgun from his
neighbor, a Mr. Greenwald, about 10 years ago; that he sawed off
the barrel 4 or 5 years ago because it was too long; that he kept
the shotgun in a drawer in his home and has never used it since he
sawed off the barrel.

     Defendant did not dispute having the shotgun with its barrel
sawed off to nine inches in his possession or that he had not
registered it with the Secretary of the Treasury or that he had not
filed papers as a maker.

     He testified that he did not know that his possession of the
sawed off shotgun was a violation of the law.

     Harry Goldberg, an investigator for the Alcohol and Tobacco
Tax Division of the Internal Revenue Service, testified as to his
interview with defendant after he had been arrested by the Akron
police, which was substantially as related by defendant on the
witness stand.

     Section 5848, Title 26 U.S.C.A., defines a firearm as a
shotgun or rifle having a barrel of less than 18 inches in length.

     Section 5861, Title 26 U.S.C.A., makes it an offense to
violate any of the provisions of the Act and prescribes the pun-
ishment.

     Under the provisions of Section 5841 scienter was not a
necessary element of the offense.

     It was sufficient for the Government merely to prove
possession of the firearm by defendant.  This the Government did by
the testimony of Mr. Goldberg and by defendant's own. admission on
the witness stand.

     Defendant contends that, the last sentence of Section 5841
made the statute inapplicable to him.

     The shotgun did not become a firearm under this law until
defendant sawed off the barrel.  He, therefore, cannot claim under
a transfer or importation of the weapon because he was the maker
thereof.

     This leaves only the question whether the statute exempted
defendant as the maker.

     In order to be exempted as a maker under Section 5841 it was
necessary that the provisions of the chapter relating to the making
of such firearms be complied with.

     Sections 5821 and 5811 of Title 26, U.S.C.A., levy a tax in
the amount of $200 upon the making of such firearm by a person not
engaged in the business of making them.

     The tax admittedly was not paid by defendant.  Hence, the
second sentence of Section 5841 does not exempt him from the
operation of the section.

     Under the undisputed evidence, the Court finds that defendant
is guilty as charged in the indictment.

     The evidence concerning defendant's ignorance of the law, lack
of criminal intent, service in the army and his past good record,
while not constituting any defense to the charge in the indictment,
may be considered by the Court in mitigation of the sentence.

     The case will be referred to the Probation Department for
presentence investigation and report and the bond of the defendant
will be continued.