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People v. Stuyvesant

197 A.D. 641 Court First Department, Decision date 1921-07-01 English

Delivered by Greenbaum, J.:

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p. 641
The People of the State of New York, Respondent, v. George Stuyvesant, Appellant.
First Department,
July 1, 1921.

Headnote

Grimes — carrying concealed weapon — evidence not justifying conviction— licensee not required to have license with him while carrying concealed weapon — failure to exhibit license not a basis for conviction but justifies arrest — presumptive evidence of guilt.
A judgment convicting the defendant of the crime of carrying a loaded revolver concealed upon his person will be reversed and a new trial granted where it appears that a license had been duly issued to the defendant and at the time of his arrest it had not been revoked.
Sections 1897 and 1898 of the Penal Law do not require a licensee to have the license with him at the time he is carrying a concealed weapon. The failure of the defendant to exhibit a license, if in fact he had one, was not a basis for conviction, although it justified the officer in making the arrest. It was only presumptive evidence.
Appeal by the • defendant, George Stuyvesant, from a judgment of the Court of Special Sessions of the City of New York held in and for the borough of Manhattan, rendered on the 5th day of April, 1921, convicting him of the crime of unlawfully possessing and concealing a firearm in violation of section 1897 of the Penal Law.
Moses A. Sachs of counsel [Moses H. Hoenig with him on the brief], for the appellant.
Michael J. Driscoll of counsel; Edward Swann, District Attorney, for the respondent.

There is no question that defendant on February 26, 1921, the date of his arrest, had a loaded revolver concealed upon his person and that he then exhibited no license for carrying a revolver. As matter of fact it was uncontradictedly established upon the trial that on October 16, 1920, a license had been issued to defendant pursuant to section 1897 of the Penal Law of this State by a police justice at the city of

p. 642
Troy and that at the time of his arrest the license had not been revoked.

Section 1898 of the Penal Law provides among other things: “ The possession, by any person other than a public officer, of any of the weapons specified in section eighteen hundred and ninety-seven of this chapter, concealed or furtively carried on the person, or of the possession of any instrument specified in the last preceding section except as permitted therein, is presumptive evidence of carrying, or concealing, or possessing, with intent to use the same in violation of this article.”

The officer was justified in arresting the defendant in the absence of proof that a license had been issued to him. The possession of the revolver under the circumstances was presumptive evidence of a violation of the law. But there is nothing in either section 1897 or 1898 of the Penal Law which requires the licensee to have the license with him at the time he is carrying a concealed firearm.

In People v. Meyer ( 194 App. Div. 822 ) the defendant, who drove a motor car in Brooklyn, failed to show an operator’s license to the police officer when asked to do so, and was charged with violation of section 289 of the Highway Law, which provides that the failure of a licensee to “ exhibit his license to any magistrate, motor vehicle inspector, police officer, constable or other competent authority, shall be presumptive evidence that said person is not duly licensed under this article.” (See Highway Law, § 289, subd. 1, added by Laws of 1910, chap. 374, as amd. by Laws of 1917, chap. 769, and Laws of 1919, chap. 472.) The court held upon appeal that the failure to exhibit a license if in fact he had one was no basis for conviction. It was only presumptive evidence. To the same effect is People v. Miles ( 173 App. Div. 179 ).

The judgment of conviction is reversed and a new trial ordered.

Clarke, P. J., Dowling, Smith and Page, JJ;, concur.

Judgment reversed and new trial ordered. Settle order on notice.

Cases cited