dissenting:
I respectfully dissent because I believe the instructions given to the jury were inadequate. Innocent and momentary handling of a sawed-off shotgun is, as the majority tacitly acknowledges, a defense to a charge of possession of a prohibited weapon. State v. Phinis, 199 Kan. 472, 482, 430 P.2d 251, 259 (1967) (statute forbidding possession of a weapon contemplates proof of possession which is more than innocent handling); State v. Flaherty, 400 A.2d 363, 367 (Me.1979) (although particular statute provided defense for innocent handling, such defense is available in the absence of such a statute); People v. LaPella, 272 N.Y. 81, 4 N.E.2d 943 (1936) (defendant found prohibited weapon in restroom, possessing it long enough' to turn it over to the police. Not considered “possession” within the meaning of the statute).
In this case, the appellant presented evidence that he handled the shotgun only long enough to get rid of it. Since this evidence would warrant an acquittal if believed by the jury, the appellant was entitled to a jury instruction supporting his theory of the case. State v. Lujan, 136 Ariz. 102, 104, 664 P.2d 646, 648 (1983). The majority contends that the instructions appellant tendered at trial were incorrect as a matter of law. While it is true that the court need not give requested instructions which are incorrect statements of law, the trial judge nonetheless has an independent duty to instruct the jury upon the law which relates to the facts of the case and matters necessary for the proper consideration of the evidence. Failure of a judge to instruct the jury on a matter vital to the rights of a defendant constitutes fundamental error. State v. Gamble, 111 Ariz. 25, 26, 523 P.2d 53, 54 (1974). A defendant is entitled to instructions which precisely and specifically, rather than merely generally, point to the theory of his defense. United States v. Wolfson, 573 F.2d 216, 220-21 (5th Cir.1978).
The majority contends, however, that the instructions given the jury adequately covered the defendant’s theory of the case. I disagree. The relevant instruction on possession read:
Possessing means knowing to have physical possession or otherwise exercise dominion or control over the property.
Defining “possessing” as having “physical possession” begs the question. Further, *318the majority’s defining “control” as “having power over” and “dominion” as “absolute ownership” also begs the question. Obviously the appellant had “power over” the shotgun for some period of time; otherwise, he would not have been in a position to dispose of it. For an instruction to be complete in a situation where a defendant presents evidence that his handling of a prohibited weapon was momentary and innocent, it must allow an acquittal if the jury infers that the defendant did not intend to control the weapon beyond his innocent and momentary handling. See State v. Neal, 215 Kan. 737, 740, 529 P.2d 114, 116 (1974). The instruction in this case never conveyed this idea and it was therefore defective.
None of the cases cited by the majority support its conclusion. The case of State v. Hoskins, 222 Kan. 436, 565 P.2d 608 (1977) dealt with the propriety of instructions given on the issue of whether an intoxicated defendant knowingly possessed a prohibited firearm. State v. Neal was a case in which a conviction for possession of a firearm was reversed because the trial court failed to instruct the jury that the weapon must be possessed with the intent to control its “use and management.” Neal, 215 Kan. at 740, 529 P.2d at 116. A similar instruction was approved in State v. Runnels, 203 Kan. 513, 515-16, 456 P.2d 16, 19 (1969). While the instructions discussed in Neal and Runnels are not particularly clear, they do tell the jury that an intent to control the use and management of the weapon is required. This at least goes further towards advising the jury that the fleeting and innocent possession of a firearm is a defense than did the instruction given in this case, which is entirely silent on the issue of intent.
I have considered the fact that during final arguments the defense contended that the appellant’s fleeting possession of the gun did not amount to guilt and that the state rebutted this by highlighting the evidence that tended to show that the appellant had possessed the gun for a long time. Arguments of counsel are no substitute for proper instructions of law. Taylor v. Kentucky, 436 U.S. 478, 488-89, 98 S.Ct. 1930, 1936, 56 L.Ed.2d 468, 477 (1978).
While the crime is not one that requires a criminal intent as that term is ordinarily used, the jury was never instructed in any meaningful way that the appellant’s defense of momentary and innocent handling was indeed a defense to a charge of possessing a prohibited weapon. In my opinion the trial court should have given the instruction the defense requested. I would remand for a new trial.