The opinion of the court was delivered by: WALKER
The above entitled cause arises out of the Federal Firearms Act of 1938
An original indictment
was returned on November 15, 1938. A petition to suppress evidence on the grounds of unconstitutionality of the statute and illegality of the search was filed by the defendant on December 1, 1938, and was denied on August 14, 1939.
The original indictment was nolle prossed on January 13, 1941.
The present (superseding) indictment was returned on July 13, 1940, correcting errors of transcription in the verbiage of the original indictment. It alleges in substance that the defendant on a named date did unlawfully receive a "certain firearm, to wit, a 32 caliber Colt Automatic pistol", theretofore shipped in interstate commerce, the defendant theretofore having been convicted of a crime of violence. The statute prohibits any such person from receiving a "firearm" so shipped and provides that possession of a "firearm" by any such person shall be presumptive evidence of unlawful receipt after such shipment.
A demurrer, raising the question of statutory construction was denied on January 3, 1941, on procedural grounds.
Trial was had before the court and jury on January 22, 1941, and a verdict of guilty returned.
During the trial the defendant contended the "32 caliber Colt Automatic pistol" recited in the indictment and admitted in evidence is not a "firearm" within the statute since the statutory definition of "firearm" restricts the term to silenced or muffled guns.
Decision was reserved pending ballistic expert testimony, which was received on January 27, 1941, and a 32 Caliber Colt Automatic with silencer attached was tested on February 13, 1941.
Although the testimony received on January 27, 1941, teaches us and the test held on February 13, 1941, demonstrates that a silencer can be attached to a 32 caliber Colt Automatic and a 32 Colt Automatic can be and was fired repeatedly with a silencer attached, the court deems it advisable to pass on the question whether or not the statute is restricted to a "firearm" designed to expel a projectile or projectiles by the action of an explosive and a firearm muffler or firearm silencer.
The defendant's contentions are: First, the statutory reference to a silencing device, "a firearm muffler or firearm silencer", is not set off by punctuation from the preceding description of a gun, "any weapon * * * designed to expel a projectile * * * by the action of an explosive". Second, the intervening participle is the conjunctive "and" rather than the disjunctive "or".
Punctuation is one of the minor guides to construction. It is not controlling and it will always give way in favor of the legislative intent and the sense of the words used.
The conjunctives "and" and "or" normally retain their ordinary meanings when used in a statute, but there is no rule of construction which demands that they do so throughout perversion of sense or intent.
The rule against statutory interpretation creative of "constructive offenses", emphasized by counsel for the defendant, does not operate to preclude inquiry into the sense and intent of criminal statutes but merely defeats ascertained sense or intent in "instances which are not embraced in the language employed in the statute, or implied from a fair interpretation of its context."
Criminal statutes like others "are not to be strained either way."
The Supreme Court answered the argument that the meaning of the statute in question is too plain and unambiguous to allow resort to any extraneous aids to construction when it said "It would be anomalous to close our minds to persuasive evidence of intention on the ground that reasonable men could not differ as to the meaning of the words. Legislative materials may be without probative value, or contradictory, or ambiguous, it is true, and in such cases will not be permitted to control the customary meaning of words or overcome rules of syntax or construction found by experience to be workable; they can scarcely be deemed to be incompetent or irrelevant. [Case cited]. The meaning to be ...