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COMMONWEALTH v. LOWARY (11/21/73)

decided: November 21, 1973.

COMMONWEALTH
v.
LOWARY, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Chester County, Sept. T., 1971, No. 205, in case of Commonwealth of Pennsylvania v. James W. Lowary, Jr.

COUNSEL

John R. Merrick, Public Defender, for appellant.

F. Ned Hand, Assistant District Attorney, with him Elliott D. Goldberg, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Spaeth, J., In Support of Reversal. Hoffman and Cercone, JJ., join in this opinion in support of reversal.

Author: Per Curiam

[ 226 Pa. Super. Page 115]

The six judges who heard this appeal being equally divided, the Judgment of sentence is affirmed.

Disposition

Judgment of sentence affirmed.

[ 226 Pa. Super. Page 116]

Opinion by Spaeth, J., In Support of Reversal:

Appellant was convicted of pointing a firearm in violation of the Act of June 24, 1939, P. L. 872, § 716, 18 P.S. § 4716 (now repealed by Act of December 6, 1972, P. L. 1482, No. 334, § 5, and not recodified), which provides: "Whoever playfully or wantonly points or discharges a gun, pistol, or other firearm at any other person, is guilty of a misdemeanor . . . ." What appellant pointed was a spring-activated hand gun that shoots small steel balls, commonly called B-B's.

It may be granted that a B-B gun is a "gun", and may be (and in the present case was) a "pistol", but that is beside the point. The statute proscribes pointing "a gun, pistol, or other firearm . . . ." Accordingly, it is not a crime to point a B-B gun unless it is a "firearm". This is so as a matter of grammar; "other" modifies "gun" and "pistol". It is also so as a matter of legal precedent, as may be seen from Bell Telephone Co. v. Public Service Comm., 119 Pa. Superior Ct. 292, 181 A. 73 (1935). There, the statute required approval of a "transaction involv[ing] . . . the assumption of any obligation or liability whether as guarantor, endorsor or otherwise . . . ." Citing "the general rule that words of a general import are limited by words of restricted import immediately following and relating to the same subject: 59 C.J. 980", id. at 297, 181 A. at 75, this court held that "by the use of the language, 'whether as guarantor, endorsor, or otherwise,' the Legislature modified and restricted the import of the ...


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