Opinion
March 9, 1961
Frank S. Hogan, District Attorney ( Francis Joseph Ferony, Jr., of counsel), for plaintiff.
Anthony F. Marra and Alexander Murray, III, for defendant.
The defendant is charged with the crime of "carrying and possessing a dangerous weapon * * * commonly known as a loaded hunting rifle", under section 1897 of the Penal Law, a misdemeanor.
The facts presented show that at about 3:30 A.M. on January 3, 1961, the defendant and another were observed leaving Central Park. The arresting officer stated that the defendant was wearing an overcoat which was bulging. On stopping the defendant, a hunting rifle, loaded, caliber 30-30, was disclosed under the overcoat. The defendant testified that he had found the rifle in the park, pulled the bolt of the rifle open, and placed the rifle under his overcoat so that the butt end was under his armpit, barrel pointing downward, and held the rifle with his hand through an opening in his overcoat pocket. From all of the evidence, I find that the rifle was completely concealed and that the defendant intended to conceal it.
The question to be determined is whether a misdemeanor has been committed under section 1897.
This section has been on our statute books for many years (L. 1881, ch. 676) and it has acquired so many amendments in the intervening years that it now is a veritable hodgepodge of licensing provisions, prohibitions and regulations, sadly in need of some logical redrafting.
We are primarily concerned, in the case at bar, with certain of the weapons provisions of the statute, to wit, subdivisions 1, 4, 5 and 5-a. Briefly, these are as follows:
Subdivision 1 makes it a crime to possess or carry certain specified dangerous weapons and certain unspecified dangerous weapons "with intent to use the same unlawfully against another."
Subdivision 4 prohibits possession of a pistol, revolver or other firearm of a size which may be concealed upon the person without a license.
Subdivision 5 prohibits having or carrying concealed upon the person any pistol, revolver or other firearm, without a license.
Subdivision 5-a prohibits having or carrying concealed upon the person any pistol, revolver or other firearm which is loaded with ammunition at the time, or having or carrying such unloaded weapon concealed on the person but having or carrying, at the same time, ammunition to fit the said weapon, without a license. Violation of this subdivision is a felony.
Section 1897-a of the Penal Law prohibits possessing, selling or offering of certain firearm attachments commonly known as "silencers".
Section 1898 of the Penal Law says that possession of any of the prohibited weapons, except as permitted in section 1897 and section 1897-a, "is presumptive evidence of carrying, concealing or possessing with intent to use the same in violation of this article".
As to subdivision 1, it has been held that, "If the instrumentality or weapon possessed is one of those specifically mentioned in the statute, then such intent [i.e., to use unlawfully] is presumed from possession without more (Penal Law, § 1898) and this applies to items which ordinarily and readily fall within the group of items so specified. * * * [As to other items not so specifically mentioned] intent to use the same unlawfully against another is a necessary ingredient which must be established in order to constitute the crime * * * [and] the presumption of section 1898 is not available to the People in this instance". ( People v. Adamkiewicz, 298 N.Y. 176, 179-180.) Accordingly, subdivision 1 is not applicable here.
Subdivision 4, which prohibits the possession of "any pistol, revolver or other firearm of a size which may be concealed upon the person" without a license must be construed to mean a firearm of a size which may be readily concealed upon the person. A rifle, though a firearm, does not fall into this category. ( People v. Raso, 9 Misc.2d 739.)
Subdivision 5 prohibits having or carrying any pistol, revolver or other firearm concealed upon the person without a license.
The gist of the prohibition included in subdivision 5 is concealment ( People v. Demorio, 123 App. Div. 665; People v. Carvelto, 123 App. Div. 822) and the concealment must be upon the person. ( People v. Spillman, 309 N.Y. 295, 303; People v. Persce, 204 N.Y. 397; see, also, 43 A.L.R. 2d 490, 494-509.)
A rifle is a firearm. A firearm is any weapon from which a shot is discharged by force of an explosive or a weapon which acts by force of gunpowder. ( People v. Evergood, 74 N.Y.S.2d 12; a firearm is "a gun from which a projectile is fired" [The American College Dictionary]; People v. Dachille, 27 Misc.2d 581.) Since the evidence presented shows that this defendant did carry a firearm, concealed upon his person, without a license authorizing possession and concealment, he has violated the provisions of this section. This is a misdemeanor.
It is our view that the defendant could also have been indicted for a felony under the provisions of subdivision 5-a, since the rifle was loaded.
To say that a rifle is difficult to conceal upon the person is to argue with the facts, and the fact in this case is that the rifle was concealed upon the person. To say further that the Legislature did not intend to include rifles in its prohibitions is to distort the plain meaning of the words of the statute. (McKinney's Cons. Laws of N.Y., Book 1, Statutes, § 94.)
We do not hold that possession of a rifle unconcealed requires a license, which was the case in People v. Raso ( supra), but we do hold that a rifle carried concealed upon the person is interdicted by this statute concerned as it is with public safety (Penal Law, art. 172). As was stated by Judge SOBEL in the Raso case ( supra, p. 744): "The purpose of the concealed weapons statutes was to prevent men in sudden quarrel or in the commission of crime from drawing concealed weapons and using them without prior notice to their victims that they were armed. The person assailed or attacked would behave one way if he knew his assailant was armed and perhaps another way if he could safely presume that he was unarmed."
The Legislature in the past has seen fit to proscribe the use of rifles of a caliber larger than .22 (Penal Law, § 1897, subd. 3), hunting within certain city limits (Penal Law, § 1897, subd. 6-b); and the sale, possession or carrying of gun silencers (Penal Law, § 1897-a). Should they desire to remove rifles from the "concealed upon the person" category, the remedy is simple. It is not for the court to enact legislation by judicial interpretation. ( Delaney v. Central Val. Golf Club, 263 App. Div. 710, affd. 289 N.Y. 577.)
The motion to dismiss at the end of the entire case should be denied. By a majority of the court, the defendant is found guilty.
Motion to dismiss at the end of the entire case is denied. (Penal Law, § 1897, subds. 1, 5; § 1898.)
I do not believe that there is anything in People v. Adamkiewicz ( 298 N.Y. 176) which prohibits the statutory presumption of unlawful intent from applying to a man walking a city street late at night with a loaded, combat-type carbine, complete with flash-hider, concealed beneath his overcoat.
I am unable to concur in the views expressed and the result reached by the majority of the court.
The defendant is charged with committing a misdemeanor under section 1897 of the Penal Law, namely, with carrying and possessing a loaded hunting rifle.
Upon trial the People showed that while being questioned by a police officer on a public street in the early morning hours of January 3, 1961, the defendant was found to have concealed under his coat a loaded 30-30 caliber hunting rifle, also described as a carbine, such possession and concealment being unlicensed.
The crux of the defendant's defense was that he had found the rifle in a public park; and that at the time he was stopped by the officer, he was carrying the firearm openly.
The only subdivisions of section 1897 under which the People might seek a conviction are subdivisions 1 and 5.
The pertinent provisions of subdivision 1 read as follows: "1. A person * * * who carries, or possesses, any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, metal knuckles, bludgeon, or who, with intent to use the same unlawfully against another, carries or possesses a dagger, dirk, dangerous knife, razor, stiletto, imitation pistol, machine-gun, sawed off shot-gun, or any other dangerous or deadly instrument, or weapon, is guilty of a misdemeanor, and if he has been previously convicted of any crime he is guilty of a felony".
Manifestly, the term "rifle" is not expressly mentioned in subdivision 1. However, the general phrase "or any other dangerous or deadly instrument, or weapon" found in that subdivision comprehends within its purview a hunting rifle; for, patently, such a firearm, if loaded, could well become a lethal weapon when used against another. Moreover, since the term "rifle" is not specified in subdivision 1, but falls within the ambit of the general phrase referred to, the criminal intent mentioned in that subdivision must be explicitly proved; and, hence, the People cannot rely upon the presumption of unlawful intent as set forth in section 1898 of the Penal Law. That presumption is strictly confined to those weapons specifically named in subdivision 1 of section 1897 ( People v. Adamkiewicz, 298 N.Y. 176; People v. Charles, 9 Misc.2d 181). With that presumption absent, the record stands totally bare of any proof that the defendant intended to use the rifle unlawfully against another, an essential ingredient of the crime charged against the defendant under subdivision 1; and for lack of such proof the People cannot succeed under that subdivision ( People v. Stevens, 109 N.Y. 159, 163).
Nor are the People in any stronger position by resting their case upon subdivision 5 of section 1897, which provides as follows: "5. Any person over the age of sixteen years, who shall have or carry concealed upon his person in any city, village or town of this state, any pistol, revolver, or other firearm without a written license therefor, issued as hereinafter prescribed and licensing such possession and concealment, shall be guilty of a misdemeanor, and if he has been previously convicted of any crime he shall be guilty of a felony."
Although subdivision 5 speaks of a pistol, revolver or other firearm, possession and concealment of which must be licensed as prescribed by section 1897, yet the licensing provisions therein are limited solely to pistols and revolvers, and, hence, are completely silent as to any other type of firearm (§ 1897, subds. 7, 8, 9). Accordingly, a rifle falls outside of the orbit of the licensing requirements in question.
Essentially, then, the question before us is this: Can the accused be convicted of possessing and concealing upon his person a loaded hunting rifle, without a written license, where he has no possible way of procuring such a license?
The very query emphasizes the absurdity of urging such a conviction; and all the more so, since an absurd purpose or result is not to be attributed to the Legislature (McKinney's Con. Laws of N.Y., Book 1, Statutes, § 145; People ex rel. Barnes v. Warden of Workhouse, 127 Misc. 224, 228).
The act of procuring a license is a fact peculiarly within the knowledge of the licensee; and so, ordinarily, he must come forward with the evidence that he obtained a license (9 Wigmore, Evidence [3rd ed.], § 2486, p. 275; Richardson, Evidence [8th ed.], § 102, p. 78; 22 C.J.S., Criminal law, § 571); but evidently, without some licensing law regulating the possession and concealment of rifles ( People v. Raso, 9 Misc.2d 739), the accused is entirely foreclosed from any possible defense that in obedience to some existing statute he had, in fact, sought and obtained the requisite license, as ordained thereunder. Without such a statutory command, the defendant cannot be convicted under subdivision 5, for that penal statute must be strictly construed (McKinney's Cons. Laws of N.Y., Book 1, Statutes, § 271; Yates v. United States, 354 U.S. 298, 304-305; People v. Broady, 5 N.Y.2d 500, 510-511). Nor should the court, in the absence of some ambiguity, indulge in unwarranted speculation or conjecture as to the intent of the Legislature ( People ex rel. Brown v. Woodruff, 32 N.Y. 355, 363-364).
I agree, of course, that there is a sovereign need for a new, regulatory statute ( People ex rel. Darling v. Warden of City Prison, 154 App. Div. 413, 422-423), in order to guard against the evil and mischief inherent in the instant set of facts; but that is a matter falling within the sole province of the Legislature. In the anxiety to meet the immediate need, this court should not create a new crime by judicial legislation, a practice always repugnant to the accepted principles of law ( Yates v. United States, supra; Todd v. United States, 158 U.S. 278, 282; People v. Briggs, 193 N.Y. 457, 459; Tompkins v. Hunter, 149 N.Y. 117, 122).
Accordingly, the defendant's motions for acquittal, based upon the People's failure to prove a prima facie case and a case beyond a reasonable doubt, should be granted.
ROSSBACH, J., concurs in the finding of guilt only in a separate opinion; POTTER, J., dissents in opinion.
Motion denied. The defendant is found guilty.