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 Post subject: Comm. vs. Miller Wanted
PostPosted: Fri Aug 23, 2002 5:49 am 
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Joined: Sat Dec 12, 1998 6:01 am
Posts: 1688
Location: Weymouth, MA US of A
HI Alan,

Could you do some legal research for us please?

Would you mind looking up a knife case? It's Commonwealth v. Miller. It's an SJC from 1986 (I think). It ought to be real easy to find with WestLaw. Could you please post the entire text of the case here on your forum? If you don't want to do that, could you e-mail me the text of the case, and I'll cut and paste the sections I need? I think you might have done this before.

Thanks a lot!

Gene DeMambro

GenoRPh@aol.com


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 Post subject: Comm. vs. Miller Wanted
PostPosted: Fri Aug 23, 2002 4:44 pm 
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Posts: 493
Location: Framingham, MA USA
Gene,

You are asking for what I term the Steve Miller Dirk Knife case which I reported in this forum sometime during last feb or mar.

In any event it was easier for me to copy the entire report (could be some edits) out of my Word file.

If you still have questions, let me know

Here it is:

My friends it is time to report a case that is of interest for a vast amount of our forum readers, especially those who use, cherish and collect knives.

Knives were included in a specific statute, in the Commonwealth of Massachusetts, which enhanced a previous statute which went into effect in 1906. Up dates occurred through the years and in 1957, the Legislature broadened the old statute (the old one prohibited daggers, stilletos, or dirk-knives. Included in the list of dangerous per se knives was Chapter 269 Section (10) (b) “any knife having a double edged blade, or a switch knife, or any knife having an automatic spring release devise by which the blade is released from the handle, having a blade length of over one and one half inches, (this revision was acts of 1957 Chapter 688 section 23, which is C. 269, Section 10 (b) of the General Laws.

I will jump the gun on this report and say specifically that what the Legislature did, was not limit knives to a blade length of one and one half inches for all knives, but as shown in the parenthetical expression in the above statutory quote, was limited to “any knife having an automatic spring release devise by which the blade is released from the handle, having a blade length of over one and one half inches”

There is an excellent case in Massachusetts decided September 8, 1986, which addresses several aspects of the statute and is important for IMHO, what care the Court took to enlighten us with its thinking. This was a Supreme Judicial Court case (SJC) and is Commonwealth v. Stephen Miller and is cited as 497 N.E. 2d 29.

“The defendant was convicted of carrying a dangerous weapon prohibited by G.G. c. 289 Section (10(b), as amended , 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 conviction.

The statute does not define the term “dirk knife”. As is the usual practice in interpreting criminal statutes, we construe the term strictly. (Court here cites Crosscup case which held that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity) Com. v. Lupo (same result) 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. (quotes Webster dictionary. A Dirk Knife is a clasp knife or large pocket knife, having a large blade like that of a dirk. 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 that 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 Collectibles (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 one half inches. Such knives were designed and are useful almost exclusively for stabbing. To facilitate this purpose the blade is usually double edged and symmetrical.

Defining a dirk knife in these terms is consistent wit the purpose of GL 269 z(10b). The purpose is to outlaw the carrying of those knives which are primarily designed for stabbing human being or for other unlawful objectives. The purpose is apparent from the types of knives, switch blade, double edged, stilletto, and dagger-prohibited by this statute 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 277 N.W. 2d 155 (weapons generally considered dangerous per se are designed for the purpose of bodily assault. (cites case where pocket knife not customarily used as dangerous weapon Louisiana case cited which says pocket knife not transformed into dagger by locking mechanism (State v. Pruett)

Such statutes recognize that while most knives can be used to inflict serious bodily harm, many knives are commonly used 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 jack-knife. 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 ½ inches long by 1 ½ inches wide. In contrast to other quick release knives enumerated in 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 the defendant’s hand or in his pocket, it could have been deemed to be a dangerous weapon. (California case cited where blade found open in defendant’s pocket. the blade was tapered to a sharp point. Texas case cited (knife in defendant’s pocket in the locked open position, and was judged to be 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 is neither tapered nor readily adaptable (from it folded form) for use as a stabbing weapon. (see Rivens v. State 1938 Texas case (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 GL c. 269, section 10(b).

In holding this, 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 (in the statute). Other characteristics, as for example, a blade tapering to a sharpened tip, man indicate that the knife in question, though shorter than a normal dirk, was indeed designed for stabbing. Ideally, the Legislature should provide more specific guidelines.

Absent more specific statutory criteria, the defendant’s motion for a required finding of not guilty should have been allowed for lack of showing that the defendant’s knife sufficiently fits the recognized definition of a dirk-knife. Judgement reversed, Verdict set aside Judgment for Defendant.

That was the end of the case reported here almost verbatim.

Please note that the case was defined in light of a dirk-knife. Also note that by citing the statute, if the definition of the one and one half blade length meant any thing other than the automatic ejection blade the Court would have dealt with this.

Don’t take great solace in this case alone. We will report others where a woman carrying a common steak knife was convicted, and I will report that one later.

Alan K

I promised to report on a case where a woman was convicted of carrying a steak knife with an eight inch serrated blade in her pocket book, and the single judge court found enough evidence to warrant her conviction of our now famous c. 269 section 10(b) dangerous weapon statute.

When I saw a synopsis report of this I was more than curious because this case was heard before Judge Kass (and two others) in the SJC. Judge Kass was also one of the judges in the Com. v. Miller case that I presented here in its complete form..

The case is Commonwealth v. Alice Thompson.

Alice was arrested by police on two outstanding default warrants. The arrest did not meet with resistance, and the office found in defendant’s pocketbook a steak knife which had an eight inch serrated blade

She was tried and convicted before a superior court judge for the above cited dangerous weapons statute violation. The Court held: The evidence that the knife had a serrated blade eight inches long, when taken together with the evidence of where the knife was found and the defendant’s statement to the officer that she carried it for her protection, was sufficient to warrant findings that the knife was “dangerous” within the meaning of Section 10(b), and that the defendant knew it to be such. (cases cited)….we reject the defendant’s narrow interpretation of the phrase “warrant for an alleged crime” which is found in section 10(b). The public policy which discourages the carrying of dangerous weapons which can be used against arresting officers…is at least as strong when an arrest is made on default warrant. (and a lot of cases cited)

IMHO, it looks as though a person carrying a knife, which is not per se a dangerous weapon, can make it a dangerous weapon if the carrier is using it to “protect” their person, the gist being that if it is used as a weapon for defense or offense it becomes a weapon, as opposed to our MA readers who use them only for sport, meals or collectors items, and for display, trade, or club activity. A word to the wise?

But poor Alice did not go to jail and the same court granted her a new trial. I don’t know what happened there.

The courts have held, and I will report more on this, that the inclusion of the items set forth in the above “dangerous” weapons statute are not all inclusive. Depending on the circumstances, any thing employed as a weapon can be classified as a dangerous weapon depending on how utilized.

Kick a guy lying down on the ground, you better use your dojo etiquette and take off your shoes or you will be charged with “assault and battery with a dangerous weapon, to wit: a shod foot”.

More about that in another post. Like it or not, we cannot, because of public policy, carry any implement or blade with the sole purpose of self defense. You admit by implication that you could use it as a weapon, albeit for self-defense.

In the “dirk” case, we read about weapons and their configuration which makes them stabbers with the sole use of striking humans. I see constant concern about blade length in these forums, where in Massachusetts and probably many other states, the intended use of knives can be discerned from their structure and the intention of the carrier.

We try to resolve the dilemma and uncertainties created when we read the statutes and decisions but a lot remains unanswered.

Here is the headnote from an SJC case and that will be followed by the more interesting facts obtained by reading the whole case:

Defendant who had small kitchen bread knife with approximately an eight inch blade in her handbag when arrested as a disorderly person could not be convicted of carrying on her person a dangerous weapon where the officer had no warrant for her arrest and there was no contention at the time of her arrest defendant was committing a breach or disturbance of the public peace and defendant could not have been prosecuted for carrying the knife on her person for innocent purpose. Com. v. Blavackas (1981 case) 419 Ne2d 856.

Now for the rest of the story:

Linda was being watched by two PO’s (Worcester Police) in unmarked cruisers. They observed her stopping cars driven by males and when she finally got into a car with one they followed and observed. They observed her and the male on the lawn behind a building and arrested her when the witnessed her taking down the pants of the male.

They arrested her for disorderly conduct and disturbing the peace. Did I spell that word in italics correctly? In any event they searched her pocketbook, which was noted to be large enough to contain 6 grapefruits, and found drug paraphernalia and a knife which appeared to be a common kitchen bread knife with a blade of about 8 inches.

The court held that she could not be convicted of a breach of peace where it was not observed by the officers and her tryst was silent. She was never charged with being a common street walker or for prostitution.

The Court held that the other charges, even if made, were not consistent with disturbing the public peace.

The Court also decided that since the knife was in her handbag and not on her person, and she had not expressed any statement which would be inconsistent with carrying the knife for innocent purposes , then she could not be convicted of violation of MGL c. 269 section (10b).

The Court did state, that if she had the knife on her person or in a vehicle within her control, the Court would have decided differently.

Is the lesson learned, “Ladies carry a large pocketbook and do your thing in silence?”

GEM, sensei & Van, sensei, and the forum readers, maybe we can make some sense of these laws if we have enough cases to dig into, and report them.

Alan K


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 Post subject: Comm. vs. Miller Wanted
PostPosted: Mon Aug 26, 2002 2:58 pm 
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Joined: Tue May 22, 2001 6:01 am
Posts: 284
Location: Mansfield, MA USA
Alan's discussion was excellent. To follow is the case as reported in case anybody still wants it.

Sincerely,
Norm Abrahamson

COMMONWEALTH v. MILLER, 22 Mass. App. Ct. 694 (1986)

497 N.E.2d 29

COMMONWEALTH vs. STEPHEN MILLER.

Appeals Court of Massachusetts.

Suffolk.

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
Commonwealth.

BROWN, J.

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
conviction.

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,
Page 695
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]
Page 696
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
the
Page 697
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
specific guidelines.

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.

Judgment reversed.

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.
Page 698


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 Post subject: Comm. vs. Miller Wanted
PostPosted: Mon Aug 26, 2002 8:28 pm 
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Posts: 493
Location: Framingham, MA USA
Thanks for the contribution Norm. The footnotes were even reported and this can be helpful in determining how the court might rule under other circumstances.

This poorly drafted, narrow minded, convoluted statute is a curse for the well intentioned and spelled the end of many martial arts weapons.

I remember when the amendments banning nunchuck, manricki, and a host of other weapons, were passed almost without opposition. I recall that many MA's feared licensing and perhaps registration of MA schools. In any event they took a low profile. In many other states exceptions are made to carry, nunchuck, sai, sickle and the usual weapons which are all very popular in tournaments. I see young people and children entering tournaments with enthusiasm, with many entering multiple event competition for weapons, kata, and kumite.

In Massachusetts they can are limited bo, kama, and dull and blunt sword, such as tai chi sword.

We have the ABA, for firearms the NRA, medical arts have the AMA, but for MA's its the "nothing A", and have no lobbyists or formal organiztion to educate legislators on our needs.

Enough of the soap box for me!

Alan K


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 Post subject: Comm. vs. Miller Wanted
PostPosted: Sat Aug 31, 2002 12:16 am 
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Posts: 29978
From attorney Darius Arbabi website:

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Is it legal to carry a Spyderco (tm) or other kind of lock-blade knife?

Probably not.

In Massachusetts, it is illegal to carry or have under your control in a vehicle "a device or a case which enables a knife with a locking blade to be drawn at a locked position." Massachusetts appeals courts have yet to decide whether lock-blade knives fit this definition.

While it is unlikely that an officer would arrest you simply for carrying a lock-blade knife, if the officer felt he had probable cause to charge you with some other crime or crimes, you should expect to be charged with this offense too.

For all of these reasons, we encourage our clients not to carry lock-blade knives or any of the other items listed below:.


What other personal defense items are illegal to carry or have under your control in a vehicle in Massachusetts?

Illegal items include, but are not limited to:

stilettos;
daggers;
any knife having a double-edged blade;
switchblades;
brass knuckles;
nunchaku;
studded arm bands; and,
throwing stars.
Violations are punishable by up to two and a half years in jail or five years in state prison.<HR></BLOCKQUOTE>


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