Cite as People v. Zerillo, 219 Mich. 635 (1922)

                  PEOPLE v. ZERILLO. (No. 183.)

           (Supreme Court of Michigan. Oct. 2, 1922.)

     Exception from Recorder's Court of Detroit; Pliny W. Marsh,
Judge. James Zerillo, alias Joseph Zerillo, was convicted of
possessing a revolver without a sheriff's permit, contrary to
Public Acts 1921, Act No. 14, and he excepts. Conviction set aside,
and defendant discharged.

     Argued before FELLOWS, C. J., and WIEST, STONE, McDONALD,
CLARK, BIRD, SHARPE, MOORE,and STEERE, JJ.

     Speed, Ring & Kelly, McClear, Stein & Sarbaugh, and J. Richard
Newman, all of Detroit, for appellant.

     Merlin Wiley, Atty. Gen., and Paul W. Voorhies, Pros. Atty.,
and Robert M. Toms, Asst. Pros. Atty., both of Detroit, for the
People.

     WIEST, J. Defendant, an unnaturalized foreign-born resident,
was convicted under a complaint charging him with possessing a
revolver without a permit granted by the sheriff, contrary to Act
No. 14, Public Acts 1921, and he brings the case here for review on
exceptions before sentence.

     It was made to appear in evidence that, about 5 o'clock in the
morning of the 25th day of September, 1921, at the corner of Chase
and Russell streets in the city of Detroit, defendant was seated at
the wheel of a Marmon touring car, with four or five men in the car
with shotguns. Defendant had no shotgun, but in the pocket of the
door of the automobile was found a .38-caliber revolver, and this
is the firearm the possession of which led to his conviction.

     The complaint was laid under the game law, but did not charge
the defendant with hunting for or capturing or killing any wild
bird or animal, or intending to do so. Does the game law make it
unlawful for an unnaturalized foreign-born resident of the state to
possess a revolver? The act mentioned makes it a misdemeanor for an
unnaturalized foreign-horn resident to hunt for or capture or kill
any wild bird or animals, either game or otherwise, of any
description, excepting in defense of his person or property, "and
to that end," such a person shall not own or be possessed of a
shotgun or rifle of any make or a pistol or firearms of any kind.
The act provides that, on the recommendation of two citizens, the
sheriff of the county, upon a showing of necessity, may issue a
permit to an unnaturalized foreign-born resident to possess
firearms.

     Defendant insists that the act, so far as it deprives him of
the right to possess a revolver, for a legitimate purpose, is in
conflict with the provisions of the Constitution of the state, and
therefore void. The Constitution of this state (article 2, section
5) provides:

     "Every person has a right to bear arms for the defense of
himself and the state."

     The true meanings of this precision is well stated in the
Constitution of the state of Colorado:

     "That the right of no person to keep and bear arms in defense
of his home, person, and property, or in aid of the civil power
when there to lawfully summoned, shall be called in question; but
nothing herein contained shall be construed to justify the practice
of carrying concealed weapons." Article 2, section 13.

     There should be added to this, however, the right of the
Legislature, under the police power, to regulate the carrying of
firearms.

     Firearms serve the people of this country a useful purpose
wholly aside from hunting, and under a constitution like ours,
granting to aliens who are bona fide residents of the state the
same rights in respect to the possession, enjoyment, and
inheritance of property as native-born citizens, and to every
person the right to bear arms for the defense of himself and the
state, while the legislature has power in the most comprehensive
manner to regulate the carrying and use of firearms, that body has
no power to constitute it a crime for a person, alien or citizen,
to possess a revolver for the legitimate defense of himself and his
property. The provision in the Constitution granting the right to
all persons to bear arms is a limitation upon the power of the
Legislature to enact any law to the contrary.

     The exercise of a right guaranteed by the Constitution cannot
be made subject to the will of the sheriff. The part of the act
under which the prosecution was planted is not one of regulation,
but is one of prohibition and confiscation. It is not regulation to
make it a crime for an unnaturalized foreign-born resident of the
state to possess a revolver, unless permitted to have one by the
sheriff of the county where he resides.

     Game being property of the state the Legislature may enact
laws for its protection, but under the guise of protection of game
may not disarm any class, falling within the constitutional
guaranty, of the right to hear arms in defense of themselves. The
guaranty of the right to every person to bear arms in defense of
himself means the right to possess arms for legitimate use in
defense of himself, and necessarily includes the right to defend
therewith, by lawful means, his property.

     The provision of the act permitting an unnaturalized
foreign-born resident to hunt for, capture, or kill any wild bird
or animal in defense of his person or property cannot be made to
work out if the law is construed to make it a crime for such a
person to possess a firearm, but can be made to function if the act
is construed to make it a crime for such a person to possess a
firearm for the purpose of hunting, capturing or killing any wild
animal, either game or otherwise, of any description, excepting in
defense of his person or property.

     Must an alien owner of a farm sit with folded arms and watch
henhawks steal his chickens? No, the act permits him to kill
noxious birds and animals, when necessary, in defense of his person
or property. But what is he going to use for that purpose? Until
the occasion arises, if this statute is given the construction
contended for by the people, it is a crime for him to possess a
firearm, and he therefore cannot be prepared to exercise the leave
granted without committing a crime. Woodchucks could burrow in his
yard and meadows with impunity, owls rob his henroost, rats run
about his feet at chore time, and in some sections of the state
wolves could sit on his very doorstep and howl defiance. Even the
predatory skunk, in the open season, would be more defensively
armed than the unnnturalized farmer faring forth to drive it away.
Must such a farmer whistle off the dog discovered in the act of
killing his sheep? Another statute gives him the right to kill such
a dog discovered In the act. Must he request the burglar to come
unarmed because he has been unarmed by the law? This act, if
construed as contended for by the people, is so sharp-shod as to
calk itself. The right to kill noxious birds and animals in defense
of person or property would be but a joke if the means of
exercising the right are taken away by the general prohibition
against possessing any firearms.

     If it is a crime for an alien to possess a revolver what
meaning shall be accorded section 3 of the act, which provides:

     "That the possession of a shotgun, or rifle, or pistol, or
firearm of any kind, at any place outside of buildings within this
state by an unnaturalized foreign-born resident, shall be
conclusive proof of a violation of the provision of section one of
this act." 

     Is this to be considered merely a rule of proof? Proof of
what? Proof of intent to hunt, or proof of possession of prohibited
weapons? If the alien is in possession of a revolver, and it is a
violation of the law for him to have one at all, there is no sense
in declaring his possession of a revolver outside of buildings
conclusive proof of a violation of the provisions of section 1 of
the act, but there is some sense in making it proof of a purpose to
hunt therewith; although it might be hard to convince a real hunter
that a revolver is a hunting arm.

     At the same session of the Legislature, and in another and a
later act, relative to protection of game (Act 117, Public Acts
1921), it is provided:

     "No person, while in an automobile shall carry a gun or other
firearm, except a pistol or revolver, unless the same be unloaded."

     Shall unnaturalized owners of automobiles be held guilty under
one game law for exercising a right under another game law? It
would be absurd to so hold, and no such holding is necessary if the
game law is kept to its true purpose. It is our duty, if possible,
to so construe the act in question as to make it harmonize with
constitutional provisions.

     The people rely upon the case of Com. v. Patsone, 231 Pa. 48,
79 Atl. 928 (affirmed 232 U. S. 144, 34 Sup. Ct. 281, 58 L. Ed.
539). We have examined that case, and find the game law there
involved did not include revolvers and pistols, and the Supreme
Court of the state of Pennsylvania was careful to state:

     "This prohibition against having deadly and long-range
firearms does not in any way deprive the alien of property without
due process of law, but simply defines and limits his right to use
firearms, by restricting such right to the use of short-range
firearms, revolvers, and pistols, and such other weapons, as may be
necessary for defense of his person and property."

     Mention of the same thing is to be found in the opinion of the
Supreme Court of the United States.

     The relevant provision of the Constitution of the state of
Pennsylvania reads as follows :

     "The right of the citizens to bear arms in defense of
themselves and the state shall not be questioned" article 1,
section 21.

     It will be noticed that our Constitution is inclusive of the
right of every person to bear arms for the defense of himself and
the state, and not merely citizens, as in the state of
Pennsylvania.

     The part of the act making it a crime for an unnaturalized
foreign-born resident to possess a revolver, unless so permitted by
the sheriff, contravenes the guaranty of such right in the
Constitution of the state, and is void. The statute must be
construed in accord with the provisions of our Constitution, and it
may stand as an act prohibiting the use of firearms by
nnnaturalized foreign-born residents in hunting or capturing or
killing any wild bird or animals, either game or otherwise, of any
description, excepting in defense of person or property, but so far
as it makes it a crime for unnaturalized residents to possess a
revolver for the legitimate defense of their persons and property
it is void.

     Under the complaint and warrant and the evidence the defendant
should have been adjudged not guilty. The conviction is set aside,
and defendant is discharged.