
    CITY MAGISTRATES’ COURT—NEW YORK CITY-FIRST DIVISION—SIXTH DISTRICT.
    September, 1911.
    THE PEOPLE v. AGNELLO PIGNATORO.
    (1.) Carrying concealed weapons—Sections 1896 to 1899, Penal Law.
    The amendment of 1911 (Sullivan Weapon Law, Chapter 195, Laws of 1911), held to be a valid exercise of the police power of the State.
    (2.) Same—Presumption of unlawful intent where no explanation of possession.
    A person who has or carries concealed upon his person a revolver, who can give no reasonable excuse, explanation or justification therefor, not having a license, may be presumed to possess the same with unlawful intent, and may be held guilty of a felony.
    (3.) Same—Where no such presumption.
    But where a person is confronted with sudden and imminent danger and is threatened with felonious assault, or his property is liable to be taken under circumstances amounting to a felony, such possession is not unlawful, even without a license.
    (4.) Same—When obtaining of license necessary.
    A person who has a revolver or carries the same concealed upon his person, who may by reason of threats or otherwise have reason to fear felonious injury to his person or property, but where since the arising of such anticipated fear ample time has elapsed for the procurement of a license, though none has been procured, may be presumed to have such revolver in his possession with unlawful intent and may be found guilty of a felony.
    (5.) Same—When license unnecessary.
    But otherwise where a person is confronted with sudden and imminent danger and is threatened with felonious assault, or his property is liable to be taken under circumstances amounting to a felony, and there is no time for the procurement of a license.
    (6.) Same.
    Where' a person is in the nighttime lawfully guarding and protecting his own property or that of his employer, and has in a sudden emergency or in imminent peril, procured a revolver, and discharged the same with the object of attracting the attention of the police for his own protection and that of the property in his care, f the possession of such weapon is not unlawful even without a li1 cense, and he cannot be found guilty of a felony.
    (7.) Same—Constitutional law—Public policy.
    ¡ Any construction of the statute in question which attempts to enforce its strict letter, held liable to jeopardize its usefulness and to render it liable to be declared void as against public policy, and unconstitutional.
    Butts, City Magistrate:
    The defendant was arrested by Officer John Pierce, of the Sixty-first Precinct, charged in an affidavit verified September 9, 1911, with being over 16 years of age, and not being a police or peace officer, that he did have concealed upon his person, at St. Ann’s avenue and One Hundred and Thirty-third street, a revolver, without having a license therefor, in violation of chapter 195 of the Laws of 1911. The said chapter 195 of the Laws of the State of Hew York amends sections 1896, 1897 and 1899 of chapter 40 of the Consolidated Laws, and the said sections are contained in what is generally known as the Penal Law.
    The defendant was a watchman employed by one Joseph A. Tippelli. Tippelli is a contractor and has a contract with the city for the repaving of the Southern Boulevard from One Hundred and Thirty-third to One Hundred and Thirty-eighth streets, in the Borough of the Bronx. Tippelli’s testimony is to the effect that along the line of his work for several weeks depredations have been committed by different gangs of ruffians, and property to the amount of $150, including cement and tools, has been stolen. He has had one or more watchmen along the line of work at night, but they have left him, giving as a reason that they were afraid of their lives on account of the gangs who infest the work. T'he gangs had thrown stones and refuse upon the line of his work and greatly hampered and impeded him in the performance of his contract.
    
      On Sunday, September 3, he employed the defendant as a watchman, and he continued in that employment until Friday night, when he was attacked while engaged in his duties as such watchman by about twenty-five persons. He was afraid of them and went into a saloon and kept himself concealed from them for some period of time, and then telephoned to his employer, Tippelli. When Tippelli arrived upon the scene he found his watchman, the defendant, under arrest.
    The testimony is clear that the defendant had a revolver and that he fired four shots therefrom. The defendant says he did not fire said shots at any person, but fired them into the air. The police officer who made the arrest corroborates him in that statement to the extent that he says he heard the four shots; fired and saw the flash of the last shot from the pistol, and that said flash pointed upward. The defendant is over 16 years of, age, is not a citizen, and had no license to carry a revolver, and upon these facts the question before me is, Can the defendant be held for trial for a felony for violating section 1897 of the Penal Law ?
    
      Samuel Goldstein, for defendant.
    
      
      See note, vol. 26, p. 515.
    
   Butts, City Magistrate:

Upon the facts as above set forth, established by the examination of the case at bar, the court is compelled to determine if the evidence is sufficient to hold the defendant for trial.

The particular clause of section 1897 of the Penal Law under which the defendant, if the evidence establishes his probable guilt, must be held 'to answer is as follows:

“ Any person over the age of 16 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, theretofore issued to him by a police magistrate of such city or village, or by a justice of the peace of sucK town, or in such manner as may he prescribed by ordinance of such city, village or town, shall be guilty of a felony.”

In construing an act of the .legislature courts must, if possible, uphold its validity and declare the legislative intent as gathered from the act itself. But courts must do more. When a legislative act is assailed and its language vague, ambiguous or seemingly destructive of established principles of justice, courts must ascertain the existing evil such act proposed to remedy, the particular necessity for the enactment of the law, and then, if possible, declare its true intent and purpose. In doing so courts must also give such acts a reasonable construction—not a forced, unnatural or ridiculous construction which might tend to bring contempt upon the administration of justice.

It is my opinion that the object desired to be accomplished by the legislature in passing the act under consideration was to discourage and if possible prevent the carrying of concealed weapons by evilly disposed, vicious persons, and minors under the age of 16 years; also to compel persons who habitually carry revolvers to obtain a license to carry the same. But the act was never intended, in my opinion, to subject a person to prosecucution for a crime who, not habitually carrying a revolver, provided himself with one in an emergency to protect his person from a felonious assault, or who possessed and carried a weapon to be used under reasonable suspicion that his home was to be invaded in the night time by burglars. The person who habitually or otherwise carries a revolver without a license and who can give no satisfactory or reasonable explanation for carrying or possessing the same may be guilty of a felony. But as it is • lawful to protect one’s person from felonious assault and one’s property from felonious appropriation—and such right cannot be taken away or limited by any legislation—when such emergency suddenly arises the possession of or the carrying of a re-volver without a license does not, it seems to me, render such, person liable to be convicted of a felony.

The test, I think, in every case must be, Was the possession-of the revolver unlawful? Thus by the-terms of said section. 1897 the carrying or possession of a dagger, dirk, dangerous, knife, razor, etc., is only unlawful when such possession or carrying is, in the language of the section, “ with intent to use the same unlawfully against another.” If the statute were-strictly construed if a law-abiding citizen bought a razor for his. use and carried it home such possession or carrying might expose him to a charge of a felony, imposing upon him the burden of proof that such razor was not to be used as a weapon against another. Again, another clause of said section provides as follows:

“Any person not a citizen of the United States who shall, have or carry firearms or any dangerous or deadly weapons in. any public place at any time shall be guilty of a felony.”

This provision of the above section is not new, except under the former law the offense was a misdemeanor, while under the present law, it is a felony.

In upholding my view that the law in question must receive a reasonable construction and that the possession of a revolver by a person not a citizen of the United States is not a felony where the possession or carrying of such pistol is not unlawful and is not possessed or carried to do unlawful injury to the person of another, let us imagine that a foreigner arrives upon our shores with a revolver upon his person- If the law is to be strictly and unreasonably construed, no matter how eminent or respectable he may be, if he lands upon a wharf in this city or ¡State with a pistol in his pocket he can be convicted of a felony and may be sent to prison for a term of seven years. Such a. construction of the statute is revolting to every established principle of justice, but no more so than the construction that the? mere possession or carrying of a revolver without a license under the circumstances I have described would make the person so carrying it or possessing it guilty of a felony. Every case, of course, arising under this statute must be decided upon its merits. There can be no hard and fast rule of construction. In the determination of a given case the court will look into all the circumstances bearing upon the case. Should a defendant give no reasonable or valid explanation of his possession or carrying such revolver the court would be warranted in holding that he is of the class to which I have referred who habitually, without just cause, carry or possess a revolver, and who therefore unlawfully carry and possess the same, and, not having a license so to do, such persons may be held for a felony. On the other hand, if not in the habit of carrying or possessing a revolver, a person is found with one who can give a straightforward, truthful, convincing reason to the court that such weapon was only carried for the purpose of lawful defense or in a case of emergency, or of imminent danger to his person or his property, then such possession is not unlawful and such person is not one of that class who needs a license, and his carrying of such pistol without a license does not render him liable to prosecution for a felony.

In other words, the courts will, as I view it, read into the clauses of the statute in question that the possession or carrying of revolvers under certain circumstances is not unlawful, the same as the first clause of such section declares the carrying or possession of the dangerous weapons mentioned therein a felony only when carried with intent to use the same unlawfully against another. The very language of section 1899 implies that a revolver may be lawfully carried even without a license. It reads as follows:

“ The unlawful carrying of a pistol, revolver, etc. * * * or weapon of the kind usually known as a blackjack, bludgeon "* * * dagger, dirk, etc., is a nuisance.”

The unlawful carrying of a pistol as above described does not mean that such carrying shall be unlawful without a license. X think that revolvers are placed in the same position as the other dangerous weapons referred to, the carrying of which is only unlawful by virtue of the section in question when carried with intent to use the same against another.

My view of the section under consideration is confirmed by reading section 1898 of the Penal Law, which provides 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.”

This section must be read and considered in connection with section 1897. The carrying or possession of a revolver or other * dangerous weapons is only presumptive evidence that they were carried or possessed with intent to use the same unlawfully against another. If such presumption is overcome by substantial evidence and the person does not habitually carry a revolver, but only possesssed or carried the same as the defendant in this case did, to protect his person from assault by the ruffians and thugs who were destroying at night the property of the employer that he was hired to guard and protect, then such possession is lawful without a license, and a defendant has not committed a felony.

My conclusions are as follows:

1st. The act in question is valid and within the police powers of the State.

2d. A person who has or carries concealed upon his person a revolver and who can give no reasonable excuse, explanation or justification therefor, if without a license, may be presumed to have possession of the same with unlawful intent and may be found guilty of a felony.

3d. A person who has a revolver or who carries the same concealed upon his person, who may by reason of threats or otherwise have reason to fear felonious injury to his person or property, but where since such anticipated fear ample time has* elapsed for the procurement of a license but none has been procured, may be presumed to have such revolver in his possession' with unlawful intent and may be found guilty of a felony.

4th. But where a person is confronted with sudden and imminent danger and is threatened with felonious assault or his property is to be taken under circumstances amounting to a felony, the possession of a revolver by a person under such circumstances, for the protection of life or property, is not unlawful, even without a license.

5th. Where a person is in the night time lawfully guarding .and protecting his own property or that of another and has in a sudden emergency or in imminent peril procured a revolver, as the defendant did in this case, and shoots off the same to attract the attention of the police for protection of himself and his property, in his case the possession of such revolver is not unlawful even without a license, and he cannot be found guilty of a felony.

The law under consideration can be sustained and ought to be ¡sustained, if reasonably construed. The right of self-defense is an inherent right of man, older than States or constitutions. Any construction of this law Which enforces its strict letter will, in my.opinion, jeopardize its usefulness and render it liable to. "be declared void as against public policy, if not unconstitutional.

The defendant is discharged.  