Mathews v. Caldwell , 5 Ga. App. 336 ( 1908 )

Powell, J.

(After stating the foregoing facts.)

1. This is not an action based upon the defendant’s negligence in selling to a young child a dangerous toy. The plaintiff’s petition puts her case solely upon the proposition that the so-called toy pistol is a real pistol, within the purview of section 344 of the Penal Code, which provides that “If any person shall knowingly sell or furnish any minor with a pistol, dirk, bowie-knife, or sword-cane, he shall be guilty of a misdemeanor;” and that the defendant, by selling to this child this thing, by whatever name called, — ■ pistol or toy pistol, — violated this law and was guilty of negligence per se.

We are of the opinion that the section of the Penal Code quoted above refers to weapons, and not to mere toy imitations of weapons, if the imitations are not reasonably capable of being put to the same use for which the. corresponding weapon is intended. That it is highly reprehensible to sell a small child a toy pistol capable only of exploding blank cartridges, that such a toy is commonly known to be dangerous, .and that a cause of action .might arise against one who sold such a toy to a small child who was injured therefrom, we have no inclination to gainsay; but these questions are not involved. To sell such a toy would not be a violation of section 344 of the Penal Code, on which this suit is based.

The name by which the thing is called is immaterial. To call a toy a pistol does not make it a pistol; to call a pistol a toy does not make it a toy. Nor is the essential character of the thing changed by the purpose for which it is sold or used in a particular case. A pistol is no less a pistol because it is sold as a to3 or used to shoot blank cartridges. A pistol is still a pistol though the main spring is broken and it can not be fired in the ordinary manner. Williams v. State, 61 Ga. 417 (34 Am. R. 402). In the case just cited the court refused to follow the contrary view expressed in the case of Evins v. State, 46 Ala. 88. Indeed the Supreme Court of Alabama itself, in the case of Atwood v. State, 53 Ala. 508, held that an old-style pistol, with its tubes imperfect and battered up, and with the lock so much out of order that it could not be fired by the trigger, was nevertheless a pistol, within the meaning of a statute against carrying firearms concealed, though in this case the earlier case by the same court was not referred to in the opinion. A broken and inefficient pistol is within the statute. Crawford v. State, 94 Ga. 722 (21 S. E. 992). In the ease of Taylor v. Seil, 120 Wis. 32 (97 N. W. 498), it was held that a small 33-calibre rifle, shooting powder and ball and capable of killing a human being, was not a toy firearm.

2. The nonsuit granted in the case at bar is equivalent to a ruling that as a matter of law the particular mechanical contrivance which was before the court and jury was not a pistol, that it was not so designed as to be reasonably capable of being used as a weapon. To affirm this judgment we would have to reach the same conclusion. After reading the record, and after examining the original contrivance (as by the consent of counsel we have been permitted to do), we are unwilling to say as a matter of law that it is not a pistol. It may be that as judges we have no right to enforce, as judicially known, that which we have privately seen, but certainly the court should not take judicial cognizance of that which its members personally know is not true. There is in the clerk’s office of this court a bullet fired from this very implement and imbedded in an oak desk. The judges are a little gun-shy, but the clerk has a mind turned to experiment, and a penchant for firearms; hence we have seen what we have seen. Knowing this much, we are unwilling to hold as a matter of law that this so-called toy pistol is not a weapon likely to produce death, or that it is not reasonably capable of being used for .purposes of offense or defense.

To sum up the matter, it is a question for the jury whether this is a pistol or not. Jurors are chosen not only for uprightness, but also for intelligence. They are supposed to bring into the box, as a part of that intelligence, experience and a knowledge of the common things of life. They are supposed to know what a pistol is, and what it is designed for. Presumably they are qualified to look at this mechanical contrivance and to say whether it is a firearm ■or not. Primarily speaking, they do not absolutely need any expert testimony to tell them whether or not certain results can be obtained from the thing before them. Expert and opinion evidence is useful only where the juror’s range of personal intelligence, so far as some particular branch of knowledge is concerned, fails to reach; it is persuasive, but not controlling. To be candid, we do not know whether we really believe this to be a pistol or not. "We have grave doubts as to what we believe about it. Under our sjstem juries are provided to solve just such doubtful questions. Let the jury be told that section 344 of the Penal Code refers primarily to weapons, and not to toys, but that a weapon can not be sold to a minor as a toy; that a thing in substance and effect a pistol can not he converted into a mere toy by being called a toy pistol; that a toy pistol does not become a pistol within the meaning of the law merely because, by handling it in some way not reasonably indicated by its mechanism as a probable or natural use, it may be made to do somewhat the same harm that a pistol would do; and we think they would be able to solve this doubtful question justly and intelligently. Judgment reversed.