“Any person over the age of sixteen years, who shall have in his possession * * * any * * * firearm of a size which may be concealed upon the person, without a written license therefor, * * * if he has been previously convicted of any. crime * * * shall be guilty of a felony.” (Penal Law, § 1897, subd. 4, as amd. by Laws of 1921, chap. 297.) Defendant has been convicted under this section after a previous conviction of robbery in the first degree. The proof of the former conviction was made entirely for the purpose of obtaining a conviction of a felony instead of a misdemeanor, under said statute. The sentence imposed (seven years in Auburn State Prison) was lawful. (Penal Law, § 1935.)
The indictment charged defendant with violating the statute quoted in that on June 7, 1925, he had in his possession a firearm of a size which might be concealed upon the person, without having a written license permitting such possession. Under the charge of the learned court, the jurors were told that the testimony authorized them to convict the defendant if they found that he unlawfully possessed either an “American bulldog ” revolver or a “ Colt ” revolver on the occasion in question.
The record shows that the American bulldog revolver was found after defendant’s arrest between the front seats of a Hudson coach in which defendant and one Lamphere were riding when apprehended. There is no testimony that defendant was the owner or the driver or the person in charge of the Hudson automobile, or that he was anything other than a passenger with Lamphere, the driver. The testimony connecting defendant with the Colt revólver is (a) that at least thirty minutes after the defendant was placed *242under arrest at the police station the Colt revolver was found in the grass some fifteen feet to the rear of where the Hudson coach had been stopped by Police Officer Case, and some five or six feet from the street curb; and (b) that just before the Hudson car had stopped, the front door at defendant’s immediate right was opened and defendant made a motion with his hand away from his body. There is no other evidence to indicate that defendant threw anything from the automobile at the time mentioned, or that he owned or ever had in his possession either revolver, actually or constructively.
Officer Case, who arrested defendant, testified that when he (Case) reached his hand into the Hudson coach after commanding its occupants to stop, defendant in vile language requested Lamphere to shoot the officer. This remark is not evidentiary' of ■unlawful possession of either revolver by the defendant. It rather indicates possession of one or both weapons by Lamphere.
Unlawful possession by defendant of the American bulldog revolver has not been proved. As to the Colt revolver, even if the inculpating testimony were adequate to sustain the verdict, which is not free from doubt, this judgment could not stand. For whether or not the jury based its verdict entirely-upon the insufficient testimony as to the American bulldog revolver is a matter of conjecture. This uncertainty requires us to set aside the verdict.
This case does not fall within the principle stated in Phelps v. People (72 N. Y. 365) and People v. Willett (102 id. 251), to wit, that where a crime is alleged in several counts in an indictment and the proof is sufficient under any one count, a general verdict' is logical and appropriate. For in the instant case an attempt to prove two separate crimes was made, two separate issues were presented to the jury; and the learned court allowed the jury to find the defendant guilty generally upon testimony which might satisfy it as to guilt under either issue. This was error. For we are unable to determine that the jury did not find against the defendant as to possession of the American bulldog revolver and in his favor as to possession of the Colt; and such a conviction would be clearly contrary to the law and to the weight of the evidence. (Buchanan v. Belsey, 65 App. Div. 58; Tyson v. Bauland Co., 68 id. 310; Thompson v. Peterson, 152 id. 667.)
The judgment of conviction should be reversed and a new trial granted.
Clark, Sears and Crouch, JJ., concur; Hubbs, P. J., dissents and votes for affirmance.
Judgment of conviction and order reversed on the law and facts and a new trial granted.