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[Cite as People v. Demorio, 123 App. Div. 665,
108 N.Y. Supp. 24 (1908).]
PEOPLE v. DEMORIO.
(Supreme Court. Appellate Division. Second
Department. January 10, 1908.)
1. Weapons--Carrying Pistol--Right
on One's Own Premises.
Under Pen. Code. § 410,
declaring it an offense if one shall have or carry concealed on his person in a
city a pistol, it is no defense that a person is on his own premises.
Pen. Code, § 410, declaring it an offense if one shall have
or carry concealed on his person a pistol, there being no provision as to intent
to use the same, the intent may be presumed from the commission of the
Appeal from Court of Special Sessions.
Francesco Demorio was convicted of violating Pen. Code,
§ 410, and appeals. Affirmed.
Argued before WOODWARD, JENKS, GAYNOR, RICH, and MILLER, JJ.
Thomas Kelby, for appellant.
Peter P. Smith, for the People.
PER 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 on one's own premises of such a weapon concealed
about the person. 2 Wharton on Criminal Law, pp. 435, 436,
"It is no defense that the weapons, when there is
no such exception in the statutes, were only carried about in the defendant's
Bishop on Statutory Crimes, § 789, says:
"Nor will it avail him that the carrying was on
his own premises unless the statute has this exception"--citing
See, too, Harman v. State, 69 Ala.
248; Carroll v. State, 28 Ark. 99, 18 Am. Rep. 538;
Dycus v. State, 6 Lea (Tenn.) 584; Maupin v. State, 89 Tenn. 367, 17 S.W. 1038.
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 be presumed from the commission of the act. People v. Herrick, 13 Wend. 87; Stokes v. People,
53 N.Y. 164-179, 13 Am. Rep. 492; Rex v. Woodfall, 5 Burr.
2667. See, too, Lawson on Presumptive Evidence, rules 65, 66, pp.
266, 271; Cutsinger v. Commonwealth, 7 Bush, 392; Strahan v. State, 68 Miss. 347, 8 South. 844.
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 was whether the defendant had the right to carry
the pistol or 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 judgment is affirmed.