Opinion
July 1, 1921.
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Penal Law of this State by a police justice at the city of Troy and that at the time of his arrest the license had not been revoked.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.