On appeal from his convictions on indictments charging him with kidnapping, G. L. c. 265, § 26, and unlicensed possession of a firearm while not at home or work, G. L. c. 269, § 10(a), the defendant attacks the sufficiency of the evidence on the kidnapping charge and claims error in the judge’s failure to instruct the jury on the issues of specific
1. The evidence. There was evidence to show that the victim and the defendant had been dating, on and off, for about thrеe years. On the evening of January 24, 1997, they were at a restaurant. According to the victim, she had not eaten and had consumed numerous alcoholic beverages. She felt “pretty close to drunk.” After leaving the restaurant, she, the defеndant, and his cousin drove aimlessly in her car. While driving, the defendant was firing a gun from the window. After dropping off the defendant’s cousin, the defendant and the victim checked into a motel. The defendant had the keys to the victim’s car.
Once inside their rоom, the victim became ill and went into the bathroom to vomit. Thereafter, she lay on the bed and told the defendant that she did not feel well and wished to go home. The defendant told her his friends were coming to the motel room and that they сouldn’t leave. When the defendant’s friends arrived, they and the defendant began to drink. The victim again told the defendant that she was not well and wanted to leave. The defendant informed the victim that she could leave when he said so. As describеd by the victim, his tone of voice “wasn’t very nice.”
When the victim tried to leave, she discovered that the door was locked, and the defendant then put a chair in front of the door with the top of the chair under the doorknob. The victim returnеd to the bed and made a telephone call to a friend. She was able to say only a few words before the defendant unplugged the phone, demanded to know whom she had called, and knocked her backwards on the bed with a blоw to her face. After striking the victim, the defendant stated, “It’s all fun and games until someone gets knocked out.” He put a gun to the right side of her head and told her that he would kill her if she called the police.
Notwithstanding the defendant’s warning, the victim latеr in the evening plugged in the telephone and again called her friend.
About ten to fifteen minutes later, the police arrived. When the police knocked on the door, the defendant removed the chair from under the doorknob and opened the door. A male officer spoke with the defendant while a female officer spoke with the victim. Inside the room, the officers retrieved the defendant’s jacket, in which they found a gun and ammunition.
2. The kidnapping conviction. Two claims which the defendant raises on appeal are based upon the premise that the Commonwealth was required to prove thаt the defendant had a specific intent to confine or imprison the victim forcibly or secretly. He argues that he was entitled to a required finding of not guilty and that the judge’s jury instructions were erroneous. We take up first the scope of the indictment charging the defendant under G. L. c. 265, § 26. That statute sets out three relevant clauses, which read:
“Whoever, without lawful authority, [1] forcibly or secretly confines or imprisons another person within this commonwealth against his will, or [2] forcibly carries or sends such person out of this commonwealth, or [3] forcibly seizes and confines or inveigles or kidnaps another person, with intent either to cause him to be secretly confined or imprisoned in this commonwealth against his will, or to causе him to be sent out of this commonwealth against his will or in any way held to service against his will, shall be punished . . . .”
In Commonwealth v. Ware,
Moreover, there is nothing in the indictment itself that required the Commonwealth to prove that the defendant had a specific intent to cause the victim to be secretly confined or imprisoned against her will. The indictment against the defendant charges:
“[He] did, without lawful authority, forcibly seize and secretly confine and imprison [the victim] within this Commonwealth against her will and forcibly carry or send [the victim] out of this Commonwealth, and/or forcibly seize and confine or invеigle or kidnap [the victim], with intent either to cause her to be secretly confined or imprisoned in this Commonwealth against her will, or to cause her to be sent out of this Commonwealth, or be held to service against her will. . .”2 (emphasis supplied).
Compare the indictments in Commonwealth v. Ware, 375 Mass.
The Commonwealth presented sufficient evidence to sustain its burden of proof under the first clause of § 26. See Commonwealth v. Robinson,
In charging the jury, the judge refused to deliver the defendant’s requested instruction concerning specific intent and instructed counsel not to argue that point in their closing arguments. Thereafter, the judge put the case to the jury on instructions that were correct, in all respects, for their consideration of the defendant’s guilt or lack thereof under the first clause of § 26.
3. The firearm conviction. General Laws c. 269, § 10(a),
It is the defendant’s argument that if the weapon in issue had been manufactured in or prior to 1899, it was not a “firearm” within the scope of G. L. c. 269, § 10(а). He claims that the judge was in error in refusing to allow him to make this argument to the jury and to instruct the jury accordingly. The defendant bases this argument on that part of G. L. c. 140, § 121, as in effect at all times here relevant, that provides that “any firearm, rifle or shotgun including any firearm, rifle or shotgun with matchlock, flintlock, percussion cap, or similar type of ignition system manufactured in or before eighteen hundred and ninety-eight” is, in effect, exempt from the definition of a firearm and therefore, he contends, outside the scope of G. L. c. 269, § 10(a). The argument is contrary to the legislative purpose of G. L. c. 269, § 10(a), and the clear and unambiguous language of G. L. c. 140, § 121.
In the first instance, § 10(a) “seeks to control the carrying of firearms so as to ‘protect the public from the potential danger incident to . . . [their] unlawful possession.’ ” Commonwealth v. Jackson,
We see no error in the judge’s rulings relating to the defendant’s misplaced reliance upon G. L. c. 140, § 121.
Judgments affirmed.
Notes
The defendant does not appeal from his conviction of assault with а dangerous weapon, G. L. c. 265, § 15B(6). The defendant’s conviction on an indictment charging him with assault and battery, G. L. c. 265, § 13A, was placed on file.
Although G. L. c. 265, § 26, is written in the disjunctive, the Commonwealth correctly framed the indictment using the conjunction “and,” thereby сharging that the defendant violated the statute in one, if not all, of the three manners therein proscribed. See Commonwealth v. Murphy,
In Commonwealth v. Ware,
The indictment in Commonwealth v. Titus,
In Commonwealth v. Lent,
Although § 121 was amended by St. 1998, c. 180, § 8, аnd St. 1999, c. 1, § 1, the limitation remains. As amended, § 121 succinctly provides, as here pertinent: “The provisions of section 122 to 129D, inclusive, and sections 131, 131A, 131B and 131E shall not apply to: (A) any firearm, rifle or shotgun manufactured in or prior to the year 1899 . . . .”
In response to an inquiry from the Commissioner of Public Safety regarding the applicability of numerous firearm statutes to nonresidents coming into the Commonwealth with antique weapons for purposes of participating in various bicentennial celebrations, the Attorney General opined:
“[General Laws] c. 140, § 121 exempts certain weapons [hereinafter antique weapons] from regulation under G. L. c. 140, §§ 122-129D and §§ 131A, 131B, 13IE, if they were manufactured before 1899 or are replicas of weapons manufactured prior to 1899 and if they meet the other specific requirements in section 121(A) or (B). The exemption allows antique firearms, rifles, or shotguns to be kept at home or in one’s place of business without any special permit, license or card being required. However, this exemption for purposes of possession or ownership of a firearm, shotgun or rifle does not satisfy the provisions of G. L. c. 269, § 10(a), which regulates the carrying of firearms, shotguns, rifles and . . . antique weapons .... Thus, G. L. c. 140, § 121(A) or (B) does not exempt antique weapons from all gun control regulation.” (Emphasis in original.)