Opinion
November, 1911.
George F. Darling, attorney in person.
Charles S. Whitman, District Attorney, for Warden.
It appears that the relator, being a person over sixteen years of age, was arrested and held upon a charge of having in his possession a pistol of a size that may be concealed upon the person, in violation of section 1897 of the Penal Law. The undisputed facts appear to be that at the time in question a pistol of a size which might be concealed upon the person was in a small cabinet in a bedroom at No. 344 East Fifty-seventh street, New York city, where, apparently, relator resided. It is not claimed that the relator had in his actual possession the said pistol, and the ownership thereof even is not specifically proved. The alleged offense is founded upon the evidence that it was in the cabinet in his home.
The question here raised is as to the exact meaning of the amendment to section 1897 adopted by the Legislature as chapter 195, Laws 1911. The amendment, so far as the present question is concerned, relates to what is now the third and fourth paragraphs of said section 1897, which is entitled " Carrying and use of dangerous weapons." Before the amendment the law provided substantially that any person over the age of sixteen who shall have or carry concealed upon his person, in any city, village or town, a pistol, revolver or firearm, without written license, etc., shall be guilty of a misdemeanor. The amendment, so far as material here, amended the above provision by making the offense a felony instead of a misdemeanor, and adding the provision that any person of the age aforesaid who shall have in his possession any pistol, etc., of a size which may be concealed upon his person without a license, etc., shall be guilty of a misdemeanor. The language so far as the description of the person, place and weapon is concerned is identical. The essential difference is that the offense of carrying concealed upon the person is raised from a misdemeanor to a felony, and the addition is added that any person who shall have in his possession such a weapon of a size which may be concealed upon the person is guilty of a misdemeanor. The object of the statute was plainly to limit and restrict the cases in which deadly instruments might be used to inflict injury by discouraging the possession of them by creating a new offense, viz., the possession of such instruments of a size which might be concealed upon the person.
The precise and only question here involved is as to whether the possession thereby made an offense is actual physical possession or a constructive possession. The word "possession" means, depending on the connection in which it is used, physical possession or constructive possession. The act in question is a penal statute, and under well-settled principles is to be strictly construed. To hold that every possible kind of constructive possession is made a crime would be to give to the language a very broad significance. By limiting it to physical possession the necessary requirements of the language are met, and, in view of the rules governing the interpretation of penal statutes, I do not think it is proper to extend its meaning beyond the actual requirements of the language used.
It would certainly be going very far to assume that the Legislature intended to make every constructive possession of such a weapon a crime; such construction would raise a very serious question as to whether so construed the act was not unconstitutional as without the police power, which every sovereign State possesses. That power is very broad and comprehensive, and its limitations cannot be accurately defined and courts have not been able or willing definitely to circumscribe it; but under the pretense of prescribing a police regulation the State cannot be permitted to encroach upon any of the just rights of the citizen which the Constitution intended to secure against abridgement, and under the guise of police regulations personal rights cannot be arbitrarily invaded. The courts must be able to see that public need is the end actually arrived at and that the law in question is appropriate and adapted to that end. It may well be questioned whether a statute making every possible constructive possession a crime is appropriate and adapted to the end in view, and, while it is not necessary to decide that question in view of the construction here given to the statute, it may not be inappropriate to consider, in connection therewith, that no other construction than the one here adopted would involve a doubtful legislative power, and it may be assumed the Legislature intended that construction, as to which the power is undisputed.
Relator discharged.