Appeal, No. 14, Oct. T., 1958, from order of Court of Quarter Sessions of Franklin County, Oct. T., 1956, No. 106, in case of Commonwealth of Pennsylvania v. Val S. Bristow. Order reversed; reargument refused February 10, 1958.
Thomas D. McBride, Attorney General, with him Frank P. Lawley, Jr., Deputy Attorney General, and George C. Eppinger, District Attorney, for appellant.
John W. Keller and Thomas J. MacBride, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 185 Pa. Super. Page 451]
Defendant, Val S. Bristow, was indicted, tried, and convicted by a jury for the violation of the Act of May 15, 1939, P.L. 134, as amended, 35 PS § 1271 et seq., hereinafter referred to as the "Fireworks Law," which prohibits, except in certain cases, the sale, offering or exposing for sale and use of fireworks. The court below held that the Law was unconstitutional, as it relates to the prohibition of the sale, the offering for sale, or the use of fireworks by the general public. The motion in arrest of judgment was granted, and defendant was ordered discharged. See Act of June 15, 1951, P.L. 585, § 1, 19 PS § 871. The Commonwealth has appealed. See Com. v. Dellcese, 155 Pa. Superior Ct. 120, 122, 38 A.2d 494.
The charge against defendant as laid in the indictment was as follows: "That Val S. Bristow, ... on the 3rd day of August  ..., at the Borough of Waynesboro ... did then and there unlawfully offer for sale, expose for sale or sell at retail, fireworks, towit: toy cannon, in which explosives or a combination of substances are used for the purpose of producing a visible or audible effect by combustion, explosion, deflagration or detonation." The indictment was drawn substantially in accord with that portion of the Law prohibiting the sale of toy cannons in which explosives are used for the purpose of producing a visible or an audible effect by combustion, explosion, deflagration or detonation.
[ 185 Pa. Super. Page 452]
Section 1 of the Law, 35 PS § 1271, provides: "The term 'fireworks' shall mean and include any combustible or explosive composition or any substance or combination of substances, or ... any article prepared for the purpose of producing a visible or an audible effect by combustion, explosion, deflagration or detonation, and shall include ... toy cannons in which explosives are used, ...
Section 2 of the Law, 35 PS § 1272, provides: "... it shall be unlawful for any person ... to offer for sale, expose for sale, sell at retail, or use or explode any fireworks: ..."
Defendant is a merchant in the Borough of Waynesboro, Franklin County. In his store he had for sale, and was selling, toy cannons and tubes of calcium carbide which were labeled "Bangsite." The cannons were of two sizes. They are mounted on wheels and consist of a chamber, charger, igniter, and barrel. They operate in the following manner: Water is placed in the chamber and "Bangsite" is placed in a separate mechanism called the charger. The plunger on the charger is pushed in to permit a measured portion of the "Bangsite" to drop into the water in the chamber. A gas is thus formed, known as acetylene gas, which unites with air, whereupon the cannon is ready to be fired. The plunger of the igniter is then pressed; this causes a hot spark which ignites the gaseous mixture; the explosion produces a loud report and a flash emanates from the barrel.
Defendant frankly admitted selling the items in question. Their operation was demonstrated before the jury, and likewise demonstrated at the argument of the present appeal before this Court. The court below in sustaining the motion in arrest of judgment was of the opinion that the definition of ...