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[Cite as People v. Persce, 204 N.Y. 397, 97
N.E. 877 (1912).]
PEOPLE v. PERSCE.
(Court of Appeals of New York. Feb. 13, 1912.)
1. Weapons--Unlawfully Carrying
Slungshot--Unlawful Intent--Necessity Of Proving.
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
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
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
Appeal from Supreme Court, Appellate Division,
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
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
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.
The judgment appealed from should be affirmed.
CULLEN, C. J., and HAIGHT, VANN, WILLARD BARTLETT,
and CHASE, JJ., concur, GRAY, J., absent.
Judgment of conviction affirmed.