Alan's discussion was excellent. To follow is the case as reported in case anybody still wants it.
COMMONWEALTH v. MILLER, 22 Mass. App. Ct. 694 (1986)
497 N.E.2d 29
COMMONWEALTH vs. STEPHEN MILLER.
Appeals Court of Massachusetts.
February 27, 1986.
September 8, 1986.
Present: BROWN, KASS, & WARNER, JJ.
Dangerous Weapon. Statute, Construction. Words, "Dirk knife."
A defendant charged under G.L.c. 269, § 10 (b), with possession
of a dangerous weapon, a dirk knife, was entitled to a
required finding of not guilty, inasmuch as the knife, a
heavy, oversized version of a folding pocket knife or
jackknife, discovered in the defendant's pocket in a closed
position, did not share enough of the characteristics of a
stabbing weapon to fit the recognized definition of a dirk
knife, a term not defined in the statute. [694-697]
COMPLAINT received and sworn to in the Boston Municipal Court
Department on June 3, 1985.
In the jury session, the case was tried before George A.
O'Toole, Jr., J.
Richard A. Cutter for the defendant.
Robert N. Tochka, Assistant District Attorney, for the
The defendant was convicted of carrying a dangerous weapon
prohibited by G.L.c. 269, § 10 (b), as amended through St.
1983, c. 516, § 2; to wit, a "dirk knife." On appeal he claims
that his motion for a required finding of not guilty was
improperly denied and that the jury instructions regarding the
definition of a dirk knife were erroneous. We reverse the
The statute does not define the term "dirk knife." As is the
usual practice in interpreting criminal statutes, we construe the
term strictly.[fn1] See Commonwealth v. Crosscup,
369 Mass. 228, 234 (1975) ("ambiguity concerning the ambit of criminal
statutes should be resolved in favor of lenity"); Commonwealth
v. Lupo, 394 Mass. 644, 649 (1985) (same). A dirk is a long
straight-bladed dagger or short sword usually defined by
comparison with the ceremonial weapons carried by Scottish
highlanders and naval officers in the Eighteenth and Nineteenth
Centuries. See Webster's Third New International Dictionary 642
(1971). A "dirk knife" is a "clasp knife," or large pocket knife,
"having a large blade like that of a dirk." Ibid. It is
apparent that the trial judge denied the defendant's motion for a
required finding of not guilty, and later instructed the jury, on
the basis of this definition.
The Webster definition is wanting in blade-related details. It
is, therefore, an insufficient basis in itself for any
determination of whether the defendant's knife has a blade like a
dirk. Other sources, however, allow a comparison of the blade on
the defendant's knife with the characteristic features of both
the Highland and the naval dirk. See, e.g., Military Collectables
(O'Neill ed. 1983) and Weapons (St. Martins Press 1980), which
provide illustrations and detailed descriptions of these dirks
and show tapered blades ranging in length from 7.9 to 11.9 inches
and in width from one to one and a half inches.[fn2]
Such knives "are designed and are useful almost exclusively for
stabbing." State v. Pruett, 37 Or. App. 183, 187 (1978). To
facilitate this purpose the blade is usually double-edged and
symmetrical. See 26A C.J.S. Dirk (1956).
Defining a dirk knife in these terms is consistent with the
purpose of G.L.c. 269, § 10 (b). See Commonwealth v. Zone
Book, Inc., 372 Mass. 366, 369 (1977). That purpose is to outlaw
the carrying of those knives which are primarily designed for
stabbing human beings or for other unlawful objectives. The
purpose is apparent from the types of knives — switch blade,
double edged, stiletto, and dagger — prohibited by § 10 (b) and
is characteristic of statutes prohibiting the carrying of
dangerous weapons. See and compare cases from other jurisdictions
which consider analogous per se statutes: People v. Brown,
406 Mich. 215, 220-221 (1979) (weapons generally considered
dangerous per se are designed for the purpose of bodily assault);
State v. Pye, 225 La. 365 (1954) (pocket knife not
customarily used as dangerous weapon); and State v. Pruett,
37 Or. App. at 188 (pocket knife not transformed into dagger by
locking mechanism). Such statutes recognize that while most
knives can be used to inflict serious bodily harm, many knives
are commonly utilized in innocent and useful ways which bear no
relation to their use as weapons.
The defendant's knife is a heavy, oversized version of a
folding pocket knife or jackknife.[fn3] Pursuant to a lawful
search, conducted for reasons not relevant here, the knife was
discovered in the defendant's pocket, in the closed position.
With the blade folded into the handle, the knife is 6 1/2 inches
long by 1 1/2 inches wide. In contrast to other quick release
knives enumerated by the statute, it does not open quickly or
easily. Once opened, and locked rigidly in position, it looks
like a dagger. Unquestionably if it had been discovered open, in
defendant's hand or in his pocket, it could have been deemed to
be a dangerous weapon. Cf. People v. Bain, 5 Cal.3d 839,
844, 850 (1971) (blade found open in locked position in the
defendant's pocket — the five-inch blade was tapered to a sharp
point); Armendariz v. Texas, 396 S.W.2d 132 (Tex.Crim. App.
1965) (knife in defendant's pocket in the locked open position,
was a "dagger").
The defendant's blade is five inches by one and one-half
inches, single edged and asymmetrical. It certainly can cut and
is a formidable and menacing weapon when opened, but it is
neither tapered nor readily adaptable (from its folded form) for
use as a stabbing weapon. See Bivens v. State, 133 Tex.Crim. 604
(1938) (similarly shaped blade in scabbard not a dirk). It is
not long enough to fit the usual definition of a dirk-like blade.
We hold that this blade does not share enough of the
characteristics of a stabbing weapon to be a "dirk-knife" within
the ambit of G.L.c. 269, § 10 (b).
In so holding, we note that this is a close case. It is not our
intention to delineate exactly what combination of
characteristics defines a dirk-like blade, or state that a
five-inch blade can never be enough like a dirk to be proscribed
by § 10 (b). Other characteristics, as for example, a blade
tapering to a sharpened tip, may indicate that the knife in
question, though shorter than a normal dirk, was indeed designed
for stabbing. Ideally, the Legislature should provide more
Absent more specific statutory criteria, the defendant's motion
for a required finding of not guilty should have been allowed for
lack of a showing that the defendant's knife sufficiently fits
the recognized definition of a dirk knife.
Deciding as we do, we have no occasion to consider the
propriety of the jury instructions.
Verdict set aside.
Judgment for the defendant.
[fn1] It is clear that the Legislature did not intend to
encompass all knives in its enumeration of "per se" dangerous
weapons. The earliest antecedent of what is now § 10 (b), St.
1906, c. 172, § 2, prohibited the carrying of "any stiletto,
dagger [or] dirk-knife." In 1957, the Legislature broadened the
list of per se dangerous knives in § 10 (b) to include "any
knife having a double-edged blade, or a switch knife, or any
knife having an automatic spring release device by which the
blade is released from the handle, having a blade of over one and
one-half inches." St. 1957, c. 688, § 23.
[fn2] According to the Encyclopedia Britannica, dirks had stopped
being "all-purpose" knives and were limited to ceremonial use by
1850. Encyclopedia Britannica 484 (1967 ed.). The term "dirk" was
originally inserted in the statute in 1906. At that time, it is
fair to assume that the Legislature was still familiar with
dirks. It should be noted that the term now may not have a
generally accepted meaning which can be communicated to the
contemporary jury (or judge) by a mere reference to a costume not
now readily pictured without reference to highly technical
sources. The legislative intent could more easily be determined
in cases like this one if the Legislature were to adopt a minimum
blade length for a "per se" dangerous knife, as they have in the
case of knives with spring releases. As to how this question is
handled in other jurisdictions, see, e.g., Mo. Rev. Stat. §
571.010 (Supp. 1984) (greater than 4 inches); Neb. Rev. Stat. §
28-1201 (2) (1985) (greater than 3 1/2 inches).
[fn3] For an example of a statute in another jurisdiction which
explicitly excludes the ordinary folding pocket knife from the
category of per se dangerous weapons see Md. Ann. Code art.
27, § 32 (1982). Because of its size the instant knife cannot
reasonably be viewed as an "ordinary" pocket knife.