State v. Lee

Annotate this Case

176 S.E.2d 772 (1970)

277 N.C. 242

STATE of North Carolina v. James Sumner LEE.

No. 27.

Supreme Court of North Carolina.

October 14, 1970.

*773 Atty. Gen. Robert Morgan and Staff Atty. Donald M. Jacobs, Raleigh, for the State.

Pearson, Malone, Johnson & Dejarmon, Durham, for defendant appellee.

MOORE, Justice.

The warrant charged that defendant "did possess a machine gun or submachine gun or other like weapon, to wit: a Universal Caliber 30 M1 Carbine, Serial No. 135258, capable of firing thirty-one (31) shots, by the successive pulling of the trigger * * * in violation of G.S. § 14-409." G.S. § 14-409 in pertinent part provides: "It shall be unlawful for any person * * * to possess machine guns, submachine guns, or other like weapons * * * Provided, further, that automatic shotguns and pistols or other automatic weapons that shoot less than thirty-one shots shall not be construed to be or mean a machine gun or submachine gun under this section."

When the words of a statute have not acquired a technical meaning, they must be construed in accordance with their common and ordinary meaning unless a definite meaning is apparent or definitely indicated by the context. Greensboro v. Smith, 241 N.C. 363, 85 S.E.2d 292; Alliance Co. v. State Hospital, 241 N.C. 329, 85 S.E.2d 386. The usual and customary definitions of the words used in this statute are as follows: A machine gun is defined as "an automatic gun using small-arms ammunition for rapid continuous firing"; a submachine gun as "a lightweight automatic or semiautomatic portable firearm fired from the shoulder or hip"; a carbine as "a light automatic or semiautomatic military rifle" (Webster's Seventh New Collegiate Dictionary); and an automatic rifle as "a rifle capable commonly of either semiautomatic or full automatic fire and designed to be fired without a mount." (Webster's Third New Collegiate Dictionary).

The word "automatic" as used in connection with a firearm is one "using either gas pressure or force of recoil and mechanical spring action for repeatedly ejecting the empty cartridge shell, introducing a new cartridge and firing it," while a *774 semiautomatic firearm is defined as one "employing gas pressure or force of recoil and mechanical spring action to eject the empty cartridge case after the first shot and load the next cartridge from the magazine but requiring release and another pressure of the trigger for each successive shot." (Webster's Seventh New Collegiate Dictionary). The technical difference then between the automatic and semiautomatic weapon is that the automatic continues to fire without further pull of the trigger while the semiautomatic requires another pull of the trigger for each successive shot. The semiautomatic is autoloading in that it is loaded automatically but does not fire automatically. The automatic both loads and fires automatically. While technically there is this difference, in ordinary usage the word "automatic" is used to describe both automatic and semiautomatic weapons.

Applying the definitions from Webster to the words of the statute (G.S. § 14-409), a machine gun is automatic, a submachine gun can be automatic or semiautomatic. What then is meant by the phrase, "or other like weapons"? "In the construction of statutes, the ejusdem generis rule is that where general words follow a designation of particular subjects or things, the meaning of the general words will ordinarily be presumed to be, and construed as, restricted by the particular designations and as including only things of the same kind, character and nature as those specifically enumerated." State v. Fenner, 263 N.C. 694, 140 S.E.2d 349; State v. Smith, 265 N.C. 173, 143 S.E.2d 293; State v. Ross, 272 N.C. 67, 157 S.E.2d 712. Applying this rule, the statute would then read: "It shall be unlawful for any person * * * to possess machine guns, submachine guns, or other automatic or semiautomatic weapons."

The statute goes further, however, and has a proviso which excludes automatic shotguns and pistols or other automatic weapons that shoot less than 31 shots. Again, giving the usual and customary meaning to the word "automatic," the proviso would exclude automatic weapons or semiautomatic weapons which shoot less than 31 shots. That this interpretation is correct seems apparent from the use of the words "automatic shotguns," which ordinarily are called automatic but invariably are semiautomatic. The real reason for the exclusion under this proviso is not the difference in the rate of fire between an automatic and a semiautomatic weapon, but the more important consideration is the number of shots which can be fired without reloading. The better reasoning seems to be, and we so hold, that the General Assembly intended to include within the prohibition of the statute all weapons either automatic or semiautomatic which shoot 31 times or more and to exclude such weapons which shoot less than 31 times.

The warrant in this case charges that the defendant "did possess a machine gun or submachine gun or other like weapon, to wit: a Universal Caliber 30 M1 Carbine, Serial No. 135258, capable of firing 31 shots by the successive pulling of the trigger." In effect this charges that the carbine in question was a semiautomatic weapon capable of firing 31 shots. The defendant contends that by the manufacturer's specifications this carbine shoots less than 31 shots30 to be exactand therefore it is expressly excluded from the operation of the statute, and that the trial court properly allowed the motion to quash.

A motion to quash can be properly allowed on the ground that the matter charged does not constitute a criminal offense. State v. Turner, 170 N.C. 701, 86 S.E. 1019. In ruling on a motion to quash, however, the court is not permitted to consider extraneous evidence, and when the defect must be established by evidence aliunde the record, the motion must be denied. State v. Cochran, 230 N.C. 523, 53 S.E.2d 663; State v. Cooke, 248 N.C. 485, 103 S.E.2d 846, app. dismd. in part 359 U.S. 951, 79 S. Ct. 737, 3 L. Ed. 2d 759, app. dismd. Wolfe v. North Carolina, 364 U.S. 177, 80 S. Ct. 1482, 4 L. Ed. 2d 1650, reh. den. 364 U.S. 856, 81 S. Ct. 29, 5 L. Ed. 2d 80.

*775 The warrant in this case properly charged that the carbine in question was capable of firing 31 shots. To sustain the motion to quash, it was necessary for the trial court to find from evidence dehors the record that it would fire only 30 shots. This was error.

If the defendant's contention is correct and the carbine shoots only 30 shots, it is legal under the statute; if it shoots more, it is illegal. This is a matter to be determined in the trial, upon proper proof, and the motion to quash should have been overruled.

The decision of the Court of Appeals is

Reversed.