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245 Pa. Super. 431

369 A.2d 479

Commonwealth v. Adams

Superior Court of Pennsylvania

Decided November 22, 1976

Superior Court of Pennsylvania · decided 1976-11-22

Key passage — most relied on by later courts

“... it is useful to distinguish between those weapons which are offensive in themselves, meaning that the universal experience within our society has been that these weapons are used only in furtherance of crime, and those that can be used offensively, in the hands of one inclined to do so, but also have recognized uses of a socially acceptable nature.”

quoted by 3 later decisions, including State v. Muliufi, 343 Pa. Super. 514 - Commonwealth v. Stewart

“[Ojther weapons like sporting rifles, shotguns and revolvers, and dangerous implements which have peaceful as well as lethal potentialities, like knives and straight razors, cannot be dealt with by drastic prohibition. Not only must we take account of the desires of sportsmen, farmers, and dealers in hunting equipment, we must also recognize that revolvers and knives are frequently carried for defensive purposes.”

quoted by 2 later decisions, including 343 Pa. Super. 514 - Commonwealth v. Stewart, 336 Pa. Super. 609 - Commonwealth v. Jackson

Relies on Commonwealth v. Gatto · Commonwealth v. Ponds · 238 Pa. Super. 177 - Commonwealth v. McNear

Good law ✅— No negative treatment on recordhow we know

Decided 1976-11-22

How this case has been cited

Cited by 29 later decisions — most recently August 2003 · most notably 336 Pa. Super. 609 - Commonwealth v. Jackson (1984), Commonwealth v. Hall (2003)

28 state decisions

1801976198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

JACOBS, Judge:

¶1This appeal requires our interpretation of the section of the new Crimes Code prohibiting the possession of offensive weapons.1 We hold that the appellant in this case, who was in possession of a set of nunchaku sticks, was not in violation of that statute.

¶2The nunchaku is an implement used in the martial arts and was originally developed in Southeast Asia. Its form recalls a small agricultural flail: two sticks of wood, about a foot long, hinged end to end by a short cord so as to allow freedom of swivel. The karate student by holding one of the sticks can swing or twirl the freely moving part in patterns or can bring both sticks together in the fashion of a nutcracker.

¶3At 8:15 in the evening of January 2, 1975 the appellant was observed at the corner of Slocum and Stenton Avenue with nunchaku sticks in his back pocket. The officer who stopped him noted that the nunchaku was visible, pushing up appellant’s jacket in the back. The officer seized the nunchaku and appellant was placed un*434der arrest for possessing a prohibited offensive weapon. At his municipal court trial, appellant testified that he was on his way to a karate school on Stenton Avenue where he was going to be working out with the nunchaku. After a finding of guilty by the municipal court judge, appellant’s sentence was suspended and he was placed on probation for a year.

¶4The Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S. § 908, prohibiting offensive weapons, defines the offense as follows: “A person commits a misdemeanor of the first degree if, except as authorized by law, he makes [,] repairs, sells, or otherwise deals in, uses, or possesses any offensive weapon.” The statute further provides that the term “ ‘offensive weapon’ means any bomb, grenade, machine gun, sawed-off shotgun, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, or other implement for the infliction of serious bodily injury which serves no common lawful purpose.” Nunchaku sticks, not surprisingly, are not specifically enumerated as examples of offensive weapons. If they are to be proscribed, therefore, it must be possible to include them under the general definition contained in the section prohibiting “other implement [s] for the infliction of serious bodily injury which [serve] no common lawful purpose.” The nunchaku clearly could inflict serious bodily injury when wielded by an expert operator; consequently we need only determine whether it could serve a common lawful purpose within the meaning of the section.

¶5To decide what implements can be recognized as having a common lawful purpose, even though they may also be adaptable for the infliction of injury, we must examine the origin and purpose of the section. The commentary to § 5.07 of the Model Penal Code, upon which § 908 *435of our Crimes Code is based, sheds some light on the nature and intent of the prohibition. “In the case of weapons, the legislature goes further, prohibiting absolutely, or with very narrow possibilities of justification, possession or dealing with certain kinds of weapons regarded as having substantially no lawful uses, e. g., bomb?, machine guns, sawed-off shotguns, blackjacks. Other weapons like sporting rifles, shotguns and revolvers, and dangerous implements which have peaceful as well as lethal potentialities, like knives and straight razors, cannot be dealt with by drastic prohibition. Not only must we take account of the desires of sportsmen, farmers, and dealers in hunting equipment, we must also recognize that revolvers and knives are frequently carried for defensive purposes.” Model Penal Code § 5.-07, Comment (Tent. Draft No. 13, 1961). It is thus clear that at its conception the section was intended to establish a prohibition very nearly absolute,2 aimed at the implements or weapons themselves, whether enumerated or falling within the general definition, which are offensive by nature. This Court has cited with approval the comments to this section of The Model Penal Code, noting that it is unnecessary to prove an intent to employ the weapon criminally in order to convict for possession of an offensive weapon. Commonwealth v. Gatto, 236 Pa.Super. 92, 344 A.2d 566 (1975). “The strength of this legislative prohibition is demonstrated by the fact that one can be convicted of violation of Section 908 for mere possession of the prohibited items even if there is no intent to employ such items criminally.” Common*436wealth v. Ponds, 236 Pa.Super. 107, 112, 345 A.2d 253, 256 (1975).

¶6 In this context it is useful to distinguish between those weapons which are offensive in themselves meaning that the universal experience within our society has been that these weapons are used only in furtherance of crime, and those that can be used offensively, in the hands of one inclined to do so, but also have recognized uses of a socially acceptable nature. The latter are dealt with under separate sections of the Crimes Code. Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 907. See Commonwealth v. McNear, 238 Pa.Super. 177, 353 A.2d 39 (1975). Section 908 is designed to prohibit the former in every circumstance and to eliminate totally such weapons, except in the most narrow and obvious situations, thereby implementing the policy of the statute that such items will not be used for any purpose.3 “The class of weapons dealt with in Section 908 have no peaceful purpose, and their only conceivable use is for purposes which our society has found to be criminal. By enacting Section 908 the legislature has clearly stated that an ‘implement for the infliction of serious bodily injury which serves no common lawful purpose’ shall not be allowed to exist in our society.” Commonwealth v. Ponds, supra, 236 Pa.Super. at 111, 345 A.2d at 255 (footnote omitted).

¶7With these purposes in mind, we now look to the nunchaku found in appellant’s possession. As we said previously, there is no doubt that the nunchaku can be used offensively, as can a golf club or a baseball bat, to inflict serious injury. However, a student or instructor of the martial arts would have occasion to use the nunchaku in the peaceful practice of karate exercises. The *437martial arts are practiced by many citizens of this Commonwealth as a sport and an exercise. To eliminate the use, possession and sale of items used in this sport simply because they could conceivably be used to inflict bodily injury is contrary to the express purpose of Section 908.

¶8Judgment of sentence vacated and appellant discharged.

SPAETH, J., files a concurring opinion, in which HOFFMAN, J., joins.PRICE, J., dissents.

¶9. Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 908.

¶10. The narrow area in which exceptions exist is provided for as follows: “It is a defense under this section for the defendant to prove by a preponderance of evidence that he possessed or dealt with the weapon solely as a curio or in a dramatic performance, or that he possessed it briefly in consequence of having found it or taken it from an aggressor, or under circumstances similarly negativing any intent or likelihood that the weapon would be used unlawfully.” Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S. § 908(b).

¶11. For example, the item may be possessed as a museum piece, or briefly after having found it, presumably enroute to destroying it. Act of December 6, 1972, P.L. 1482, No. 334, § 1,18 Pa.C.S. § 908(b).

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