State v. Lee
176 S.E.2d 772
N.C.
1970
Check Treatment
MOORE, Justice.

The warrant charged that defendant “did possess a machine gun or submachine gun or other like weapon, to wit: a Univеrsal Caliber 30 Ml Carbine, Serial No. 135258, capable of firing thirty-one (31) shots, by the successive pulling of the trigger . . . in violation of G.S. 14-409.” G.S. 14-409 in рertinent part provides: “It shall be unlawful for any person ... to possess machine guns, submachine guns, or other like weаpons. . . . Provided, further, that automatic shotguns and pistols or other automatic weapons that shoot less than thirty-one shots shall not be construed to be or mean a machine gun or submachine gun under this section.”

When the words of a statute have not acquired a technical meaning, they must be construed in accordance with their common аnd ordinary meaning unless a definite meaning is apparent or definitely indicated by the context. Greensboro v. Smith, 241 N.C. 363, 85 S.E. 2d 292; Alliance Co. v. State Hospital, 241 N.C. 329, 85 S.E. 2d 386. The usual and customary definitions of the words used in this statute are as follows: A machine gun is defined as “an automatic gun using small-arms ammunition for rapid continuous firing”; a submachine gun as “a lightweight automatic or semiautomatic portable ‍​‌‌‌​​‌​​‌​‌​‌‌‌​​​​​​​‌‌​‌​​​‌​‌‌​‌​​‌‌​‌‌​‌​‌‌‍firearm fired from the shouldеr or hip”; a carbine as “a light automatic or semiautomatic military rifle” (Webster’s Seventh New Collegiate Dictionary) ; and an automatic rifle as “a rifle capable commonly of either semiautomatic or full automаtic fire and de *244 signed to be fired without a mount.” (Webster’s Third New Collegiate Dictionary.)

The word “automatic” as used in connection with a firearm is one “using either gas pressure or force of recoil and mechanical spring aсtion for repeatedly ejecting the empty cartridge shell, introducing a new cartridge and firing it,” while a semiautomаtic firearm is defined as one “employing gas pressure or force of recoil and mechanical spring аction to eject the empty cartridge case after the first shot and load the next cartridge from the magazine but requiring release and another pressure of the trigger for each successive shot.” (Webster’s Seventh New Collegiate Dictionary.) The technical difference then between the automatic and semiautomatic weapon is that the automatic continues to fire without further pull of the trigger while the semiautomatic requires another pull of the trigger for each successive shot. The semiautomatic is autoloading in that it is loaded automatically but does not fire automatically. The automatic both loads and fires automatically. While technically there is this difference, in ordinary usage the word “automatic” is used to describe both automatic and semiautomatic weapons.

Applying the definitions from Webster to the words of the statute (G.S. 14-409), a machine gun is automatic, a submaсhine gun can ‍​‌‌‌​​‌​​‌​‌​‌‌‌​​​​​​​‌‌​‌​​​‌​‌‌​‌​​‌‌​‌‌​‌​‌‌‍be automatic or semiautomatic. What then is meant by the phrase, “or other like weapons”? “In thе construction of statutes, the ejusdem generis rule is that where general words follow a designation of particular subjects or things, the meaning of the general words will ordinarily be presumed to be, and construed as, restricted by the particular designаtions and as including only things of the same kind, character and nature as those specifically enumerated.” State v. Fenner, 263 N.C. 694, 140 S.E. 2d 349; State v. Smith, 265 N.C. 178, 143 S.E. 2d 293; State v. Ross, 272 N.C. 67, 157 S.E. 2d 712. Applying this rule, the statute would then read: “It shall be unlawful for any person ... to possess machine guns, submachine guns, or other automatic or semiautomatic weapons.”

The statute goes further, however, and has a proviso which excludes automatic shotguns and pistols or other automatic weapons that shoot less than 31 shots. Again, giving the usual and custоmary meaning to the word “automatic,” ‍​‌‌‌​​‌​​‌​‌​‌‌‌​​​​​​​‌‌​‌​​​‌​‌‌​‌​​‌‌​‌‌​‌​‌‌‍the proviso would exclude automatic weapons or semiautomatic weapons which shoot less than 31 shots. That this interpretation is correct seems apparent from the usе of the words “automatic shotguns,” which *245 ordinarily are called automatic but invariably are semiautomatic. The rеal reason for the exclusion under this proviso is not the difference in the rate of fire between an automatic and a semiautomatic weapon, but the more important consideration is the number of shots which can bе fired without reloading. The better reasoning seems to be, and we so hold, that the General Assembly intended to include within the prohibition of the statute all weapons either automatic or semiautomatic which shoot 31 times or more and to exclude such weapons which shoot less than 31 times.

The warrant in this case charges that the defendant “did рossess a machine gun or submachine gun or other like weapon, to wit: a Universal Caliber 30 Ml Carbine, Serial No. 135258, cаpable of firing 31 shots by the successive pulling of the trigger.” In effect this charges that the carbine in question was a semiautomatic weapon capable of firing 31 shots. The defendant contends that by the manufacturer’s specifiсations this carbine shoots less than 31 shots — 30 to be exact — and therefore it is expressly excluded from the opеration of tire statute, and that the trial court properly allowed the motion to quash.

A motion to quash can be properly allowed on the ground that ‍​‌‌‌​​‌​​‌​‌​‌‌‌​​​​​​​‌‌​‌​​​‌​‌‌​‌​​‌‌​‌‌​‌​‌‌‍the matter charged does not constitute a criminal offense. State v. Turner, 170 N.C. 701, 86 S.E. 1019. In ruling on а motion to quash, however, the court is not permitted to consider extraneous evidence, and when the defect must be established by evidence aliunde the record, the motion must be denied. State v. Cochran, 230 N.C. 523, 53 S.E. 2d 663; State v. Cooke, 248 N.C. 485, 103 S.E. 2d 846, app. dismd. in part 359 U.S. 951, 3 L. ed. 2d 759, 79 S. Ct. 737, app. dismd. Wolfe v. North Carolina, 364 U.S. 177, 4 L. ed. 2d 1650, 80 S. Ct. 1482, reh. den. 364 U.S. 856, 5 L. ed. 2d 80, 81 S. Ct. 29.

The warrant in this case properly charged that the carbine in question was сapable of firing 31 shots. To sustain the motion to quash, it was necessary for the trial court to find from evidence dehors the rеcord that it would fire ‍​‌‌‌​​‌​​‌​‌​‌‌‌​​​​​​​‌‌​‌​​​‌​‌‌​‌​​‌‌​‌‌​‌​‌‌‍only 30 shots. This was error.

If the defendant’s contention is correct and the carbine shoots only 30 shots, it is legal under the statute; if it shoots more, it is illegal. This is a matter to be determined in the trial, *246 upon proper proof, and the motion to quash should have been overruled.

The decision of the Court of Appeals is

Reversed.