Defendant has been convicted of the crime of having and carrying a firearm concealed upon his person, without a license therefor, after having been convicted of a crime. (Penal Law, § 1897, subd. 5.) He offered evidence that, having found the weapon in a public toilet room, he had put it in his pocket, intending to deliver it to the police, after keeping an appointment with his wife at a nearby street corner. Without request or *Page 83 suggestion, the weapon was there surrendered by the defendant to a detective. This, the defendant says, was twenty minutes after he had found it.
The sole question here presented is that raised by the refusal of the trial court to instruct the jury, "that if this defendant found this pistol as claimed by him, and if he thereafter took this gun for the purpose of delivering it to an officer or to a police station, that he was performing a civic duty, and that such possession was not the possession intended by Section 1897." We think this ruling was error. The "possession" forbidden by the statute "should not be construed to mean a possession * * * which might result temporarily and incidentally from the performance of some lawful act" (People v. Persce, 204 N.Y. 397, 402), particularly when, as is here claimed, the act was designed to meet the social policy of the law.
The judgments should be reversed and a new trial ordered.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, LOUGHRAN and FINCH, JJ., concur; CROUCH, J., taking no part.
Judgments reversed, etc.