People v. Cricuoli — 29 N.Y. Crim. 412

Majority

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SUPREME COURT — APPELLATE DIV__SECOND DEPT.,

May 16, 1913.

THE PEOPLE v. FRANCESCO CRICUOLI.

(157 App. Div. 201.)

Headnote

(1.) Carrying concealed weapons^[1] — Charge to JURY.^[2]

Where upon the trial of a defendant, indicted for the crime of having in his possession and carrying a concealed weapon, of the kind known as a dangerous knife, it appeared that the alleged weapon was a razor, with a nicked or serrated edge, which had not been prepared for use as a weapon, it is reversible error to charge that “ a person who * * * with intent to use the same, unlawfully against another, carries or possesses a dagger, dirk, dangerous knife, razor, stiletto or any other instrument or deadly weapon, is guilty of a felony,” if the law at the time of the alleged offense did not specify a razor, but only “ a dagger, dirk or dangerous knife,” the word “ razor ” having been added by a subsequent amendment.

Appeal by the defendant, Francesco Cricuoli, from a judgment of the County Court of Kings county, rendered against him on the 16th day of December, 1912, convicting him of the crime of carrying concealed weapons.

Isadore Kallet, for appellant.

Harry G. Anderson, Assistant District Attorney [James C. Cropsey, District Attorney, and Edward A. Freshman, Assistant District Attorney, with him on the brief], for the respondent.

On December 2, 1910, the defendant was indicted for the

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crime of carrying concealed weapons committed on November 21, 1910. The first count charges that he knowingly and secretly concealed upon his person a certain instrument and weapon of the kind known as a dangerous knife, with intent to use the same against some person or persons unknown. The second count is for the crime of possession of a concealed weapon in that he willfully and furtively possessed a certain instrument and weapon of the kind known as a dangerous knife with the intent then and there feloniously to use the same against some person or persons unknown. He was tried on December 9, 1912, convicted and sentenced, and now appeals.

The alleged weapon is a razor, with a nicked or serrated edge. The court charged the jury that “ the law is, that a person who * * * with intent to use the same, unlawfully against another, carries or possesses a dagger, dirk, dangerous knife, razor, stiletto, or any other instrument or deadly weapon, is guilty of a felony.” Of course, the jury had the right to assume that such was the law applicable to the case. But the law as it read at the time of the alleged commission of the offense did not specify a razor, but only “ a dagger, dirk or dangerous knife.” The words “ unlawfully ” and “ razor, stiletto, or any other dangerous or deadly instrument or weapon ” were added by subsequent amendment. (See Penal Law, § 1897, as amd. by Laws of 1911, chap. 195.) It seems to me that the error is capital.

It is true that a razor is defined generally as knife. (See Stormonth’s, Webster’s, the Standard and the Century Dictionaries.) But “knife” is the generic term. In the earlier statute the Legislature did not employ the term “ knife,” but the term “ dangerous knife,” and associated that term with dagger and dirk. A razor is further defined as a knife used for shaving, and so ordinarily its úse is not akin to that of a dagger or a dirk. I think that the qualification “ dangerous ” does not mean a knife which could be put or rather perverted

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to a use dangerous to one attacked, but to that kind of knife which, like a dirk or dagger, is primarily designed as a weapon. And the subsequent specification of “ razor,” in addition to the term “ dangerous knife,” is indication that there was not the legislative intent that the expression “ dangerous knife ” should include a razor. Endlich on Interpretation of Statutes says (§ 366) : “Earlier Cognate Acts. — Where it is gathered from a later Act, that the Legislature attached a certain meaning to an earlier cognate one, this would be taken as a legislative declaration of its meaning there.”

The court, after an instruction as to the intent, further charged as follows: “ Aside from determining that, you must determine, of course, whether it is a dangerous knife or a razor, or a dangerous deadly instrument or weapon.” Under this instruction the jury might determine that the instrument found on the defendant was a dangerous knife, or a razor, or a dangerous deadly instrument or weapon, and thus find an element of guilt. And it cannot be assumed that the jury determined that this instrument, though once a razor, was a dangerous weapon or a dangerous knife, because under the instruction of the court such determination was not necessary for a conviction — it was sufficient that the instrument was a razor.

Aside from the physical appearance of the instrument itself there is no evidence that it had been diverted from its normal use and prepared for use as a weapon, and there is no proof of the practice of transforming 'razors into weapons. There was nothing in the surrounding circumstances that indicated that this instrument was designed or carried or possessed as a weapon. It was taken from the coat pocket of the defendant at a time when he had been found seated in a cake and coffee house in company with a friend or friends. His sole overt acts, as described by the detectives who made the arrest, were loud talking and a waving of his hands prior to his ap

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prehension. I cannot find that the errors of instruction were cured, and for that reason I advise a reversal of the judgment and an order for a new trial pursuant to the provisions of section 527 of the Code of Criminal Procedure.

Thomas, Cabe, Rich and Stapleton, JJ., concurred.

Judgment of conviction of the County Court of Kings county reversed, and new trial ordered pursuant to the provisions of section 527 of the Code of Criminal Procedure.