People v. Demorio

123 A.D. 665, 22 N.Y. Crim. 142, 108 N.Y.S. 24, 1908 N.Y. App. Div. LEXIS 149

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 1908
• Status: Published

Opinion

Peb Curiam:

That part of section 410 of the Penal Code'pertinent to this case provides: “Any person over the age of sixteen years, who shall have. or carry concealed upon his person in any city or village, of this State, any pistol, revolver, or other firearm, without a. written license therefor, theretofore' issued to him by a., .police magistrate of such city - or village, or in such manner as -may be prescribed by ordinance of such city or village, shall.be guilty of a misdemeanor.” There is no dispute that the defendant was-found, outside of .a bar in a barroom with a revolver in his pocket. The appeal rests upon the contention -that the defendant was on his own ..premises, and that any proof of intent was lacking. The statute does not contain any exception which permits- the carrying while oil one’s Own premises of such a weapon concealed about the person. "Wharton on Criminal Law (10th ed. § 1557) says:'“It is no defense that the weapons, -when there is no such exception in the statutes, were only' carried about in the defendant’s own house.” Bishop on Statutory Crimes (3d ed. §'789) says: “ Nor- will it avail him that the carrying was on his own premises unless, the statute has. this exception,” citing cases. (See, too, Harman v. State, 69 Ala. 248; Carroll v. State, 28 Ark. 99; Maupin v. State, 89 Tenn. 367.) The mere, fact that a man carries, such a weapon-in his own curtilage does, not warrant the conclusion that he would not use it if occasion offered —and does not negative the conclusion that he did not have, it under such circumstances for any wrongful, -offensive or defensive purposes. This part of the statute quoted does not contain any provision as to-intent to use the same, hence the intent may bé presumed from the commission of the act. (People v. Herrick, 13 Wend. 87; Stokes v. People, 53 N. Y. 164, 179; Rex v. Woodfall, 5 Burr. 2667. See, too, Lawson Presump. Ev. rules 65, 66; Cutsinger v. Commonwealth, 7 Bush [Ky.], 392; Strahan v. State, 68 Miss. 347.) Moreover, section 411 provides that the possession under such circumstances is presumptive evidence. Testimony as to the defendant’s character was not rejected, but was admitted. The comment of one of the three members of the court following the statement of counsel as to the number of witnesses as to character that “ the question is whether [the defendant] had a right to carry a pistol ór not ” does not indicate that the court failed to take into consideration all of the evidence, including that as to the good character of the defendant.

The judgment is affirmed.

Woodward, Jenks, G-aynor, Rich and Miller, JJ., concurred.

Judgment of the Court of Special Sessions affirmed.