Quick question.

Is there a Legal definition for what constitutes a "Curio" in regards to Sect. 46.05 (d)(1)?

Got a guy who was stopped w/a butterfly knife. Has (some) evid. that he may have just bought it and was heading home. Collects knives, etc.

Got me to thinking about X-mas shopping in the Mall and you can see these things in the Knife store for sale. What makes something a "curio"?

If the knife has one of those frightening wide-eyed Precious Moments kids on it, it's a "curio." And if so, please bring it to me so I can smash it with a hammer. (Or, just bring me anything at all that's Precious Moments and I'll smash it with a hammer.)

does it play celine dion when you flip it open? if so, it's not only inadmissible as evidence, but it's also probably a curio.

I use my butterfly knife only for skinning butterflies and certain moths. Probably wouldn't make a good defense, I know, not to mention it takes a couple hundred Monarchs to make a sandwich.
Exit only and Merry Christmas

the definition of firearm makes reference to an antique or curio firearm as being manufactured prior to 1899.

websters describes it as "something (as a decorative object) considered novel, rare, or bizarre : CURIOSITY; also : an unusual or bizarre person." beyond that i'm at a loss.

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also : an unusual or bizarre person." beyond that i'm at a loss.

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So if I bought a curio cabinet, I would put a precious moment�s knife and A.P. in there?

AP I think its time for one

Okay Jeff, that's it -- I've decided, it's time. I'm coming out of the curio cabinet. I...I...I am, I am..., I'm an oddity.

...and on a semirelated note, A.P., if you keep on saying "Merry Christmas" in your postings, you're not going to be qualified to work in many large super-retail establishments. That's now considered to be proselytizing ya know?

The phrase "solely as an antique or curio" in (d)(1) modifies only the noun "short-barrel firearm". It is no defense, even if the Defendant claims the knife was "just a curio".

You could sing your closing remarks about his defense "Just a curio" to the well known David Lee Roth tune "Just a Gigelo". David Newell will back me up on this.

Seriously, my dad, then the Admin Asst for the HCDA's office, told me that in the 60's he was summoned to a courtroom where then ADA Joe Nairn was singing his closing operatic style to the Jury. He was apparently a talented singer in that particular genre.

I'm glad I can't sing.

Just a curio
and everywhere I go
people know the knife I carry

I'll get a second chance
If by preponderance
I show the blade's uncanny

But I, ain't got no money
Nobody represents me
Won't some cheap lawyer come and take a chance for me?
'Cuz I ain't got bread.

[This message was edited by David Newell on 11-30-05 at .]

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Originally posted by Martin Peterson:
The phrase "solely as an antique or curio" in (d)(1) modifies only the noun "short-barrel firearm". It is no defense, even if the Defendant claims the knife was "just a curio".

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If this is so, then what does "the actor's conduct "incidental to dealing with" a switchblade knife (which I understand includes Butterfly knife) mean?
How can you not transport, possess or sell, but have an affirmative defense if the person's conduct was "incidental to dealing with it"?

Basically, how would someone allege or prove the affirmative defense? I may be making this more confusing than it really is, but this statute and this affirmative defense baffles me. (Almost as much as knife stores being able to sell them? Not that they can, but I know I've seen them in the malls.)

I have been looking at the statute in preparation for prosecuting a juvenile who had a .410 saw-off shotgun (along with 3 oz. or so of marihuana) in his room.

The "manufactured before 1899" is found only in the definition of "firearm" in Section 46.01(3) and is there to exclude such guns from the chapter. I do not think that the date in the definition has any effect on the defense established in Section 46.05(d)(2).

Regarding how one might establish that an illegal weapon is possessed merely as an antique or curio, in my case, the juvenile is claiming that he found the weapon in the alley, that it is inoperable, and that he was planning to mount it for display. The police have advised me that the weapon is operable, so I think that his defense is purely dependent upon resolution of the facts by a trier of fact. If the gun were inoperable, I think that it would be a curio as a matter of law.

I am not sure how you prove "curio" when talking about a knife, unless you show that you have a whole curio cabinet full of them and thereby expose yourself to multiple prosecutions. Perhaps your situation is also dependent upon a determination by the trier of fact that the defendant is legitimate dealer and collector rather than a dangerous criminal.

Hmm, JMH, I see your point. I guess the problem cannot be solved that easily. Shucks.

It appears the antique and other collectors' lobby wanted to protect knife folks too. So, I guess I would go back to the idea that "curio" is derived from "curiosity" and argue the particular knife must be shown to be unusual and thus have appeal (and value) apart from its characteristic as a weapon. Furthermore, you are correct to say that "dealing with" looks to the circumstances of how the knife was being used at the time. See Cantu, 802 S.W.2d at 3. Jim, Cantu deals with your definitional issue as well.

i agree with you about the 1899 thing being tied to the firearm. i was just pointing that language out because it appears to be the only statutory clarification in that chapter for the phrase "antique or curio." of course, it's not worth much if they're only talking about firearms and the response will always be, the legislature specifically chose to define firearm that way and they left it out of the affirmative defense language. i guess curio is in the eye of the beholder. or the fact-finder as the case may be.

One does not carry one's antiques in one's pants; It's not common practice to stroll around town square with ceramic figurines and little crystal candy dishes in your backpack. If it's not in packaging or with a receipt showing recent purchase, I'd argue that the defendant's intent was to carry it as a weapon.

Greg, David, if you ever need backup, let me know. I'll come down as a special prosecutor and sing the "do-wops".

Don't think it will go that far, but for grins -
How would you go about explaining to a jury that stores can sell (arguably) them, but you can't possess them or transport them home if you choose to buy one.
Trying to look at it from that point of view, that of the jury, I got a bit of a problem with the store in the mall being able to sell one of these things, but if you get stopped on the way home from the mall, you could go to jail.
In no way am I having a problem if the person is carrying it in his pocket just like someone would carry a plain ol' pocket knife. But if they argue (which I know any and all would more than likely try to argue to get out of the pickle) and have some evid. to prove it, that they had just bought it and such, how would you go about educating and arguing with the panel?

Phillip,
I must have been typing as you were posting. I think that I have to agree with you.

I'm also thinking that they sell the big hunting knives for skinning, etc. And chef knives are a little long to be carrying around but lots of people own them. They just don't walk around with them strapped on the hip when they go to the store or movie.

Thanks all.

JMH - yup. A couple of years ago I had a defense attorney doing the 'just dismiss it' curio tap dance at trial announcement. I made the point similar to your kitchen knife example. The defendant was claiming that his brass knuckles were his grandmother's and as such were a family heirloom. I asked why he didn't have her brooch on and carry grandpa's ashes in his knapsack.

Do-wop.