Sims v. State , 1988 Okla. Crim. App. LEXIS 193 ( 1988 )

PARKS, Judge,

dissenting:

I must dissent with regard to appellant’s first assignment of error. The majority, without acknowledging this Court’s prior rulings, interprets 21 O.S.1981, § 1283 as not requiring the State to prove that the pistol was capable of firing a lethal projectile.

In Nelson v. State, 687 P.2d 744, 745 (Okla.Crim.App.1984), this Court upheld the requirement of “capable of firing a lethal projectile,” explaining that “pistol,” as used in the statute, is a firearm capable of discharging a projectile. More recently, this Court followed the long-standing interpretation, stating that “pistol,” as defined by the legislature in 21 O.S.1981, § 1289.3, is “any firearm capable of discharging a projectile composed of any material which may reasonably be expected to be able to cause lethal injury....” Hunnicutt v. State, 755 P.2d 105 (Okla.Crim.App.1988) (FN 2). Although the majority states that the intent of the statute “was to keep guns out of the possession of or control of felons,” I can find no such intent, especially in light of the statutory definition of “pistol.”

While the majority implies that appellant could have correctly been convicted of carrying an “imitation” firearm, it should be noted that appellant was not charged or tried on the basis of an imitation pistol. Accordingly, I must dissent.