Thursday, November 6, 2008

Spare The Porcupine

An interesting decision from the New Hampshire Supreme Court reversed a conviction for the offense of felon in possession of a deadly weapon. The facts:

At trial, the State introduced evidence that the defendant had a bow, with several arrows, hanging on a rack on a wall in a recreational room in his residence, and had additional arrows located within the residence. The State also presented evidence that the defendant had used the bow and arrow to shoot and kill a porcupine on his property at some point in the past.

The court majority held that the evidence was insufficient to establish that the bow and arrows were a deadly weapon. Notwithstanding the demise of the porcupine, the court was concerned that the state's theory would criminalize the possession of rat poison by a convicted felon and reach too far.

The dissent would affirm:

While I agree with the majority that to be a deadly weapon the object must have been used, threatened to be used, or intended to be used in such a manner that is known to be capable of killing or seriously injuring a human, I believe that the bow and arrow in this case meets this definition.

Here, the defendant used his bow and arrow to kill a porcupine. Using it in this manner – to kill a living thing – is a use that is known to be capable of killing or causing serious bodily injury to a person. A mouse trap would not be a deadly weapon because, even if it were used to kill a mouse, the manner in which it was used to do this is not known to be capable of killing or causing serious bodily injury to a human. A human would not be killed or seriously injured by a mouse trap in the same way that a mouse would be. By contrast, a human would be killed or seriously injured by a bow and arrow in the exact same way that the porcupine in this case was killed.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2008/11/an-interesting.html

Law & Society | Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bfae553ef010535d765e3970b

Listed below are links to weblogs that reference Spare The Porcupine:

Comments

I guess he should have killed a mouse with his arrow..

Stephen

Posted by: FixedWing | Nov 6, 2008 9:26:24 AM

Glad I did not grow up in a household that subscribed to the "Spare the porcupine, spoil the child" mantra.

Posted by: Alan Childress | Nov 6, 2008 10:47:40 AM

Post a comment