Before MAJOR, Chief Judge, and FINNEGAN and SWAIM, Circuit Judges.
This is a prosecution under an indictment returned by the grand jury on September 12, 1952, to the United States District Court for the Southern District of Indiana, Terre Haute Division, charging defendant with failing to comply with the requirements of the Internal Revenue laws of the United States relating to the registration of firearms, in that he did unlawfully fail to register with the Collector of Internal Revenue for the District of Indiana, in accordance with 26 U.S.C.A., sec. 3261 (b), a certain firearm he possessed on or about April 29, 1952, at Terre Haute, Indiana, and which was required to be registered under said section of the Act. The gist of the offense charged in the indictment is the possession of a firearm and the failure to register the same.
Defendant entered a plea of not guilty, waived trial by jury, and after a trial by the court was found guilty on October 2, 1952. He was sentenced to the custody of the Attorney General for a period of one year. This appeal is from that judgment.
At the close of the case for the government, defendant presented and filed a written motion for judgment of acquittal. The motion was overruled. Defendant renewed his motion for judgment of acquittal at the close of all the evidence. The court again overruled the motion.
Defendant contends that: (1) the trial court erred in overruling his motions for judgment of acquittal at the close of government's evidence and again at the close of all the evidence, because there is no evidence in the record to prove that defendant was ever possessed of a firearm required to be registered under 26 U.S.C.A. sec. 3261 (b). Defendant claims the gun found on him is not a firearm as defined in 26 U.S.C.A. sec. 2733, which defines the term "firearm" as used in sec. 3261 (b) of the Act; (2) he also claims error by the trial court in admitting in evidence, over his objection, and to his prejudice, a razor and a pocket knife found on him at the same time.
At the outset of the trial, the following stipulation signed by the United States Attorney, by the defendant, and by his counsel, was read into evidence:
"Comes now the United States of America, by Marshall E. Hanley, United States Attorney, and comes now the defendant in person, and by Benjamin G. Cox, his counsel of record herein, and for the purpose of the trial of this case hereby stipulate and agree to the following facts as evidence in this cause, to wit:
'1. That the official Firearms Registration Records of the Bureau of Internal Revenue, at Washington, D.C., wherein are kept the records of firearms registration and transfers for the Collection District of Indiana, contains no record of any registration or transfer in the name of the defendant, James Edward Freeman, of a certain weapon referred to in the indictment and to be offered in evidence herein, and described in the indictment as a single shot, bolt action, 22 caliber Hamilton rifle No. 51, having a barrel length of 3 7/16 inches, more or less.'"
The only evidence before the court besides the stipulation was that introduced by the government and established these facts: On April 29, 1952, two police officers of the City of Terre Haute, Indiana, were riding in a squad car in that city. At 7:30 A.M., they received a radio call to go to the Gerstemeyer Technical High School to investigate a disturbance, where it was reported a man was carrying a gun. As they entered the school they noticed defendant in the act of leaving the building. The principal of the School pointed to defendant and said: "That is the man." The police officers took defendant to the dean's office in the school. While there one of the officers, in searching for the weapon, struck defendant's left thigh and a gun, concealed on his person, was discharged. Defendant was shot by the discharge of the gun. On his person, in addition to the gun, were found gov's. ex. 2, a sheath containing a straight razor, and gov's. ex. 3, an open pocket knife. Defendant was then removed to the Union Hospital under police guard, and while there was placed under arrest. The official Firearms Registration Records of the Bureau of Internal Revenue, contains no record of any registration in the name of defendant, of the weapon described in the indictment. One of the police officers described the gun as a single action, single shot gun and that it had been discharged.
Under 26 U.S.C.A. sec. 2733, which is part of the National Firearms Act, we find the following definition of firearms: "* * * The term 'firearm' means 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 * * * but does not include any rifle which is within the foregoing provisions solely by reason of the length of its barrel if the caliber of such rifle is 22 or smaller, and if its barrel is 16 inches or more in length."
26 U.S.C.A. sec. 3261 (b), pertaining to registration, reads as follows:
"Persons in general. Every person possessing a firearm shall register, with the collector of the district in which he resides, 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. * * * Provided, That no person shall be required to register under this subsection with respect to any firearm acquired after July 26, 1934, and in conformity with the provisions of this part and sub-chapter B of chapter 25."
Answers to the following questions will be decisive of the points raised.
(1) Is government's exhibit 1 a firearm within the meaning of the National Firearms Act, 26 U.S.C.A. sec. 2733 and sec. 3261 (b)?; and, (2) did the District Court commit error in admitting in evidence government's ...