#### STATE OF NORTH CAROLINA v. JAMES SUMNER LEE

No. 7011SC104

(Filed 24 June 1970)

Weapons and Firearms— machine gun, submachine gun or like weapon

Weapon described in a warrant as “a Universal Caliber 30 Ml Carbine, Serial No. 135258, capable of firing thirty-one (31) shots, by successive *602pulling of the trigger” is not a “machine gun, submachine gun or other like weapon” within the meaning of G.S. 14-409.

Gkaham, J., dissents.

Appeal by the State from McKinnon, J., 27 October 1969 Session, Lee Superior Court.

Defendant was charged in a warrant with the unlawful possession of a machine gun or sub-machine gun or other like weapon, to wit: a Universal Caliber 30 Ml Carbine, Serial No. 135258, capable of firing thirty-one (31) shots, by the successive pulling of the trigger. G.S. 14-409. The offense was alleged to have occurred on or about 2 September 1969. Defendant was tried in District Court on 9 September 1969, and from a verdict of guilty appealed to the Superior Court for trial de novo.

■ When the case was called for trial in Superior Court on 28 October 1969, defendant moved to quash the warrant because: (1) the weapon described in the warrant was not such a weapon as was covered by the statute; and (2) as applied to defendant the statute (G.S. 14-409) was void for vagueness. The trial judge ruled that the weapon as described in the warrant was not a “machine gun, sub-machine gun or other like weapon” within the meaning of G.S. 14-409. Based upon this ruling the trial judge quashed the warrant, an^; the. State appealed.

Attorney General Morgan, by Staff Attorney Jacobs for the State.

No appearance for defendant.

BROCK, J.

We have examined G.S. 14-409 and the warrant under which defendant was charged in this case, and we agree with the ruling of the trial judge.

Affirmed.

Britt, J., concurs.

Graham, J., dissents.