PEOPLE v. PERSCE.

(Court of Appeals of New York. Feb. 13, 1912.)

1. Weapons--Unlawfully Carrying Slungshot--Unlawful Intent--Necessity Of Proving.
Penal Law (Consol. Laws 1909, c. 40) § 1897, provides that one who attempts to use against another or "carries or possesses" any slungshot, etc., is guilty of a felony, and section 1898 makes the possession of any of the weapons specified in the last section concealed on the person presumptive evidence of carrying with intent to use the same in violation of that section. Before its amendment in 1905 (Laws 1905, c. 92), Pen. Code, § 410, provided that one who attempts to use against another or who with intent so to use carries or possesses any weapon of the kind commonly known as a slungshot is guilty of a felony. Held, that an intent to unlawfully use a slungshot need not be shown in order to convict under section 1897.

2. Weapons--Offenses--Carrying Slungshot--Intent--Power of Legislature.
The Legislature had power to enact Penal Law (Consol. Laws 1909, c. 40) § 1897, making one who carries or possesses any weapon known as a slungshot, etc., guilty of a felony, without requiring proof of an intent to unlawfully use it, construing the statute as prohibiting the carrying of a slungshot, etc., within the immediate control and use for unlawful purposes; the Bill of Rights not invalidating such a statute.

3. Weapons--Right to Bear Arms.
The provision of the federal Constitution preserving the right of the people to keep and bear arms was not intended to affect action by the states.

Guiseppe Persce was convicted of unlawfully carrying a slungshot, and from a judgment of the Appellate Division (135 App. Div. 919, 120 N.Y. Supp. 1141) unanimously affirming the judgment of the General Sessions upon the verdict, he appeals. Affirmed.

John Palmieri, for appellant. Charles S. Whitman, Dist. Atty. (Robert S. Johnstone, of counsel), for the People.

HISCOCK, J. The appellant was convicted under that one of three counts in an indictment which charged that he "did carry and possess a certain instrument and weapon of the kind commonly known as a slungshot." The evidence showed that a detective followed him at about 2 o'clock in the morning into a room where he was found with two other men, and there took from his pocket the weapon in question. Defendant when arrested denied knowledge of its possession. At the time in question section 1897 of the Penal Law provided: "A person (p.878)who attempts to use against another, or who carries, or possesses any instrument or weapon of the kind commonly known as a slungshot, billy, sand club or metal knuckles, or who with intent to use the same against another, carries or possesses a dagger, dirk or dangerous knife is guilty of a felony." The trial judge charged: "'A person who carries or possesses any instrument or weapon of the kind commonly known as a slungshot is guilty of a felony.' If this defendant at the time and place in question carried or possessed, knowingly possessed of course, any instrument or weapon known as a slungshot he is guilty of a felony. That is all there is to the case." And he refused to charge several propositions presented by the appellant which made intent to use the weapon against another an essential element to be found by the jury before they could convict him. The exceptions to these refusals and the suggestion that, if such intent is not to be implied, the statute is unconstitutional, present the only questions requiring consideration.

The court correctly refused to hold, as requested, that proof was necessary of intent to use the slungshot. The argument that it was so necessary is predicated on a section of the penal law immediately following the one which has been quoted and which reads as follows: "The possession, by any person other than a public officer, of any of the weapons specified in the last section, concealed or furtively carried on the person, is presumptive evidence of carrying, or concealing, or possessing, with intent to use the same in violation of that section." The appellant argues that because by this last section a certain possession "of any of the weapons specified" in the preceding one is made presumptive evidence of carrying or possessing with intent to use the same in violation of that section an intent to thus use must be found in the case of each weapon before a violation is made out. This is an erroneous view. The section relied on must be regarded as making possession evidence of an intent to use only in those cases where such intent is a necessary element of the crime as provided by the first section. It is not to be construed as requiring evidence of an intent to use where the crime as defined by the preceding section is made out without proof of any such intent as in the case of a slungshot. The ambiguity in the last section, if there is any, is due to an amendment of the first section. Prior to 1905 that section (then section 410, Penal Code) read: "A person who attempts to use against another, or who, with intent so to use, carries, conceals, or possesses any instrument or weapon of the kind commonly known as the slungshot, billy, sand club or metal knuckles, or a dagger, dirk or dangerous knife, is guilty of a felony." While the section thus read, the succeeding one, for section 1898 of the Penal Law relied on was then section 411 of the Penal Code, was perfectly appropriate and unambiguous. In 1905 (Laws 1905, c. 92) section 410 was so changed as to make the "possession of any instrument or weapon of the kind commonly known as a slungshot," etc., of itself a crime without evidence of intent to use, and the element of intent to use was thus eliminated in the case of those weapons. When this change was made section 411 was not correspondingly amended as would have been quite appropriate, although in our judgment not essential.

The Legislature has the undoubted power to declare that various acts not theretofore so shall be criminal without proof of other intent as a necessary ingredient of the offense than the intent to commit the prohibited act. People v. Abeel, 182 N.Y. 415, 75 N.E. 307, 1 L.R.A. (N.S.) 730, 3 Ann. Cas. 287; People ex rel. Hegeman v. Corrigan, 195 N.Y. 1, 87 N.E. 792; People v. Werner, 174 N.Y. 132, 66 N.E. 667.

If we give to the statute under consideration a rational interpretation, it becomes clear that the carrying or possessing of a slungshot even without proof of specific ulterior criminal intent are within the character of acts which the Legislature may thus condemn. Of course, the possession which is meant is a knowing and voluntary one, as the trial judge explicitly charged. Further, the word "possesses" is to be interpreted somewhat in the light of its association with the other word of the statute, "carries." As such, It must mean a possession which places the weapon within the immediate control and reach of the accused, and where it is available for unlawful use if he so desires. And, on the contrary, it clearly should not be construed to mean a possession for instance such as would theoretically and technically follow from the legal ownership of a weapon in a collection of curious and interesting objects or which might result temporarily and incidentally from the performance of some lawful act, as disarming a wrongful possessor.

Given to the statute thus a reasonable interpretation, and its enactment readily and clearly comes within the police power. The evidence and the well-understood character of slungshots, billies, sandbags, and brass knuckles make it evident that the Legislature were entirely justified in regarding them as dangerous and foul weapons seldom used for justifiable purposes but ordinarily the effective and illegitimate implements of thugs and brutes in carrying out their unlawful purposes. For instance a standard dictionary defines a slungshot as "a metal ball of small size with a string attached used by ruffians for striking." Influenced as we may assume the Legislature was by some such view as this, it is obvious that one of the proper and efficient methods by which to prevent the commission of crime to be apprehended through the instrumentality of these weapons was to make their possession (p.879)of itself criminal without delaying until opportunity had bred and perhaps permitted the accomplishment of some particular evil design. This is what has been done, and there is no infringement of the Constitution in this aspect of the legislation. Lawton v. Steele, 152 U.S. 133, 14 Sup.Ct. 499, 38 L.Ed. 385.

Neither is there any constitutional provision securing the right to bear arms which prohibits legislation with reference to such weapons as are specifically before us for consideration. The provision in the Constitution of the United States that "the right of the people to keep and bear arms shall not be infringed" is not designed to control legislation by the state. Presser v. Illinois, 116 U.S. 252, 6 Sup.Ct. 580, 29 L.Ed. 615. There is no provision in the state Constitution at least directly bearing on this subject, but only in the statutory Bill of Rights. But beyond this, as has already been suggested, the act in question relates to instruments which are ordinarily used for criminal and improper purposes and which are not amongst those ordinary legitimate weapons of defense and protection which are contemplated by the Constitution and the Bill of Rights.

CULLEN, C. J., and HAIGHT, VANN, WILLARD BARTLETT, and CHASE, JJ., concur, GRAY, J., absent.