People v. Panitz

Martin, P. J. The defendant is a union house painter. About a week prior to August 29, 1936, a strike was called, as a result of which he, with others, picketed the building of his employer. The strike having been settled in so far as defendant’s employer was concerned, the picketing of that building ceased. The defendant reported at the union headquarters and offered the use of his automobile for conveying union members to such other buildings as they might want to picket. At the request of the union he took a number of men to Frisby avenue, in the Bronx. The police ordered the men out of the automobile, searched the car and on the floor of the rumble seat found a bayonet in its scabbard under two placards announcing the strike. The officer concealed the bayonet and asked who owned the car. The defendant stated that he did. The weapon was then exhibited and he was asked what he had to say about it. He replied that he did not know anything about it. On the trial he explained that when he denied ownership he was a little scared. The appellant contends that Penal Law, section 1898, which provides that possession of the weapons specified in section 1897 is presumptive evidence of intent to use the same unlawfully, applies only to the weapons specifically named in said section. He urges that because a bayonet is not named in said section there is no presumption against him in connection with his possession thereof. Section 1897, in so far as material, reads as follows: “1. A person who * * * with intent to use the same unlawfully against another, carries or possesses a dagger, dirk, dangerous knife, razor, stiletto, imitation pistol, machine-gun, sawed off shot-gun, or any other dangerous or deadly instrument, or weapon, is guilty of a misdemeanor.” While not specifically enumerated, a bayonet undoubtedly belongs to the class of weapons designated as “ any other dangerous or deadly instrument, or weapon.” The Legislature obviously, instead of attempting to enumerate specifically each and every dangerous weapon, named certain of such weapons and included others of like character, under the ejusdem generis rule. In McKinney’s Consolidated Laws, book 1, “ Statutes and Statutory [278] Construction,” page 201, it is said: “ Where a statute enumerates several classes of persons or things, and immediately following and classed with such enumeration the clause embraces ' other ’ persons or things, the word ' other ’ will generally be read as ' other such' like,’ so that persons or things therein comprised may be read as ejusdem generis with, and not of a quality superior to or different from, those specifically enumerated.” The case of People v. Visarities (220 App. Div. 657), relied upon by the appellant, is directly against him. The defendant was there charged with carrying a bludgeon (a weapon specifically named in section 1897). The court held that an iron bar twenty inches long and three-eighths to one-half inch in diameter was not a bludgeon'as charged in the indictment. The court stated, however: “ It may be that had the information charged the possession of a dangerous weapon with intent to use, the evidence might in the circumstances disclosed show a commission of the offense referred to in the last portion of section 1897. The fact that the defendant was on a strike and had the iron bar partly concealed under his coat when arrested might be regarded as some evidence of his intent to use.” The presumption to use unlawfully the weapon thus obtains against the defendant, and the only question remaining is whether he rebutted said presumption. In this connection the defendant testified that the bayonet had been given to him by some person whose apartment he had painted; that he tried to match it with another, so that he could place both over a fireplace in his home; that he found another in an antique shop but they asked too much for it, and thereafter he kept it in the car. He did not call as a witness the person from whom he received it or offer any corroboration of his alleged efforts to purchase another. His testimony was evidently rejected by the triers of the fact, which is not surprising in view of defendant’s denial of any knowledge of the bayonet at the time of his arrest. From his resort to falsehood, a knowledge of guilty possession may be inferred. In People v. Conroy (97 N. Y. 62) it is said: “ The resort to falsehood and evasion by one accused of a crime affords of itself a presumption of evil intentions, •and has always been considered proper evidence to present to a jury upon the question of the guilt or innocence of the person accused.” The foregoing is also an answer to the appellant’s second contention, namely, that there is no evidence in the case from which an intent to use the weapon unlawfully can be inferred. It was for the court to determine, in the light of all the facts and circumstances, whether there was such an intention. The prosecution [279] did not rely entirely upon the defendant’s resort to falsehood, as was the case in People v. Nowakowski (221 App. Div. 521) and People v. Orr (270 N. Y. 193), cited by the appellant in support of the proposition that too much weight should not be given to the fact that a defendant, when placed in a position of suspicion and danger, may resort to deception in the hope of avoiding the force of such proof. In the case at bar there is, in addition, the fact that the defendant was engaged in picketing activities at the time the weapon was found in his possession. The judgment should be modified by reducing the sentence to the time already served, and as so modified affirmed. Glennon, Untermyer and Cohn, JJ., concur; Dore, J., dissents.