Cite as People v. Rayber, 176 N.Y.S.2d 579 (Kings Cty. Sup. Ct. 1958)

          People of the State of New York, Plaintiffs, 

                               v. 

                  Arnold A. Rayber, Defendant.

                       Kings County Court.

                         July 31, 1958.

     Leo A. Healy, Brooklyn, for defendant.

     Edward S. Silver, Dist. Atty., Brooklyn, Nathan R. Schor,
Asst. Dist. Atty., New York City, for the People.

     Nathan R. Sobel, Judge.

     This case was tried without a jury.

     Defendant was charged in a four count indictment with (1)
Possession of a machine gun; (2) Possession of a hand grenade; (3)
Possession of a pistol without a license; (4) Possession of a
revolver without a license.

     Defendant and/or corporations of which he was an officer had
for many years maintained a sporting goods and firearms store in
this county.  For years he or one of the corporations had been
licensed as a "second hand dealer in second hand firearms."  He had
at one time a "gunsmith license" and a "dealer in firearms license"
both of which had expired.  Sec. 1914, Penal Law.

     On February 4, 1958, police and Federal officers descended on
his place of business without a search warrant or warrant of
arrest.  The premises were marked "closed for alterations--use
first floor office."  The testimony is that the premises were
closed and out of business since October 1957.  They found on the
premises two machine guns, a hand grenade, a dismantled pistol and
a dismantled revolver.  There is no contention that this defendant
was or ever had been engaged in any unlawful activities or had sold
machine guns or firearms to unauthorized persons.  He or his
corporations had been in business for many years.

     No problem is presented with respect to the 2nd, 3rd or 4th
Count.  The defendant established by the preponderance of the
testimony that the hand grenade was a souvenir with the powder
extracted; that the pistol and revolver were dismantled and were
beings repaired as a courtesy to two persons authorized to possess
same.  The People have far failed to establish the defendant's
guilt on these Counts as required by law.

     The defendant admitted purchasing on behalf of the corporation
the two machine guns in question.  He testifies they were part of
a large lot purchased from Service Armaments Company of Pagoda, New
Jersey.  He contends that they were purchased as deactivated
machine guns.  The People's testimony establishes, however, that
they could be fired by anyone possessing the proper sized bullets.

     Section 1897, Subd. 1-a of the Penal Law (added by Ch. 792, L.
1931) states "a person who possesses * *  * such machine-gun is
guilty of a felony."  But another sentence of the same Subdivision
states "This subdivision shall not apply to possession of a
machine-gun as authorized by the preceding section."

     Section 1896, the preceding section, was also amended by Ch.
792, L. 1931.  The amendment added the following provision with
respect to machine guns.

         "A person who sells or keeps for sale, or offers, or
     gives, or disposes of any instrument or weapon of the kind
     usually known as a machine-gun * * * is guilty of a felony,
     except that the manufacture of machine-guns as merchandise and
     the sale and shipment thereof direct to regularly constituted
     or appointed state or municipal police departments * * * and
     to military and naval organizations shall be lawful."

     The 1931 Statute was a recommendation of the Baumes
Commission.  A search of the Commission's reports fails to disclose
anything helpful.

     But the legislative intent is clear.  In 1931, the
legislature, by Section 1896, prohibited the sale of machine guns
except to police and military.  By Section 1896, the possession of
machine guns was made unlawful.  But the legislature recognized
that possession during manufacture and for the purpose of sale to
police and military must be excepted.  That is what was done by the
machine gun provisions in Sections 1896 and 1897.  Possession for
such purposes was made "lawful."

     In Sew York State there is no provision requiring a license to
manufacture, repair or sell machine guns lawfully such as is
required by Section 1911 of the Penal Law with respect to sale of
weapons of a size which may be carried on the person.

     I could perhaps in another case find from circumstances
surrounding possession of a machine gun that such possession was
not for lawful sale.  But when, as in the instant case, the
defendant has for many years been a dealer in all kind of firearms
and weapons, the burden is upon the People to establish not only
possession but also that the possession was not for the purpose of
sale to lawful authorities.  There is no proof in the record on
that score.  I rule that the People have failed to establish the
guilt of the defendant beyond a reasonable doubt.

     The verdict is "Not Guilty" on all Counts of the indictment.
Defendant is discharged.  Bail is exonerated.