Cite as People v. Woods, 202 Misc. 562 (1952)

         The People of the State of New York, Plaintiff,

                               v. 

         Robert J. Woods and John T. Amader, Defendants.

City Magistrate's Court of New York, Borough of Queens, Felony
Court

                        August 14, 1952.

     Crimes -- presumption from possession of machine gun -- (1)
presumption in Penal Law (section 1897, subd. 1-a) that presence of
machine gun in dwelling is presumptive evidence of illegal
possession by person occupying dwelling constitutional- (2) where
"machine gun" found in cellar of home of one defendant but machine
gun lacked parts making it impossible to fire more than one shot at
time, instrument was not machine gun within definition in said
subdivision 1-a; complaint against defendants dismissed.

     1. The presumption contained in subdivision 1-a of section
1897 of the Penal Law that the presence of a machine gun in a
dwelling shall be presumptive evidence of its illegal possession by
persons occupying the place where the machine gun is found does not
violate a defendant's constitutional rights where there is a
rational connection with the facts proved and the conclusion
presumed and where the presumption itself is neither conclusive nor
arbitrary.

     2. Where a "machine gun" was found in the cellar of the home
of one defendant and the gun lacked two parts which made it
impossible for it to fire more than one shot at a time, the
instrument was not a machine gun as defined in said subdivision 1-a
because "a number of shots or bullets" could not be "rapidly or
automatically discharged" therefrom "with one continuous pull of
the trigger".  The complaint against defendants should be
dismissed.

     Prosecution for violation of subdivision 1-a of section 1897
of the Penal Law.

     T. Vincent Quinn, District Attorney (William Kerwick of
counsel), for Plaintiff.

     David Bornstein for defendants.

     SHAPIRO, M.  The defendants are charged with a violation of
subdivision 1-a of section 1897 of the Penal Law in that while
acting in concert with each other they did have in their possession
a firearm commonly known as a "machine gun."

     The proof disclosed that the "machine gun" was brought from
Germany as a souvenir, was possessed originally by the defendant
Amader and was by him delivered to the defendant Woods.

     It was found by the police hanging from a ceiling beam in the
unlocked cellar of the home of the defendant Woods to which place
they had been directed by the defendant Amader.

     Subdivision 1-a of section 1897, supra, dispenses with the
common-law requirement of personal or physical possession of a
machine gun by a defendant since it provides that, "The presence of
such machine-gun in any room, dwelling, structure or vehicle shall
be presumptive evidence of its illegal possession by all the
persons occupying the place where such machine-gun is found."

     The presumption thus created, like the presumption created by
the finding of a revolver, etc., in an automobile, other than a
public omnibus (Penal Law, section 1898-a) has been held to be
within the power of the Legislature and not violative of a
defendant's constitutional rights (People v. Terra, 303 N. Y. 332;
People v. Russo, 278 App. Div. 98, affd. 303 N. Y. 673; People v.
Murphy, 276 N. Y. 612) where "there is a rational connection with
the facts proved and the conclusion presumed, and where the
presumptions themselves are neither conclusive nor arbitrary "
(People v. Russo, supra, p. 102).

     If that were all there were to this case, the court would
hold, at least as to the defendant Woods, that the People had made
a sufficient showing to hold that defendant for the action of the
Grand Jury.

     The proof, however, discloses that the "machine gun" was minus
two vital component parts, to wit, a saddle piece and a saddle type
drum.  The absence of the saddle piece, according to the proof,
makes it impossible for the saddle type drum to be affixed and the
absence of the latter makes it impossible to fire more than one
shot at a time from said "machine gun."

     It was conceded by the District Attorney that no saddle-piece
or saddle type drum was found in the possession of either defendant
and in fact the proof would seem to establish that the "machine
gun" was brought to this country in its present condition.

     Thus, the instrument, by reason of its condition, could only
be loaded with one bullet at a time and had to be separately loaded
for each successive shot.

     At the end of the People's case, the defendants contended that
the instrument in question was not a machine gun as that term is
defined in subdivision 1-a of section 1897 of the Penal Law.

     So far as material on that point the section tells us that "a
machine gun is a weapon of any description * * * from which a
number of shots maybe rapidly or automatically discharged from a
magazine with one continuous pull of the trigger".  (Emphasis ours.)

     The District Attorney, with commendable candor, expressed his
doubt that the instrument in question is a machine gun and with
equal candor conceded that if it is not, he has no case against
either defendant.

     It would seem clear from the evidence that the instrument
before the court is not a machine gun as that term is defined in
the statute because "a number of shots or bullets" cannot be
"rapidly or automatically discharged" therefrom "with one
continuous pull of the trigger". It can fire only one shot at a
time and is therefore in reality nothing but a rifle.

     The court is therefore compelled to hold, as a matter of law
-- albeit reluctantly -- that the instrument in question is not a
machine gun within the meaning and requirements of subdivision 1-a
of section 1897 of the Penal Law.  The complaint is dismissed, both
defendants are discharged and their bail is exonerated.