Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County at No. Misc. 75-00-1129. No. 1471 October Term, 1975.
John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, Dist. Atty., Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion, in which Hoffman, J., joins. Price, J., dissents.
[ 245 Pa. Super. Page 433]
This appeal requires our interpretation of the section of the new Crimes Code prohibiting the possession of offensive weapons.*fn1 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.
The 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.
At 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 under
[ 245 Pa. Super. Page 434]
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.
The 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, pushbutton, 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.
To 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 ...