The defendant has been convicted of unlawfully carrying and possessing a blackjack. Police Officer Benjamin Friedman testified that on May 2, 1939, he was approached by a man named Edward Scherer who stated that he was having some trouble with the defendant about his (Scherer’s) wife. Scherer told the officer that he wanted to discuss the matter with the defendant and he asked the officer to accompany him to the home of the defendant. The officer testified that he did so and that when the defendant came to the door in answer to the bell he was not wearing a coat and a blackjack was clearly visible as it protruded from a rear pocket of his trousers. At that time the defendant told the police officer that he was employed as a conductor by the Interborough Rapid Transit Company and that he had found *14the blackjack the previous night on a subway train. He then stated that it was in his possession pending its return to the proper authority in' the Interborough Rapid Transit Company. The defendant told the officer that he had forgotten to turn it in to the company. The police officer arrested the defendant.
The defendant testified that he had been employed as a conductor for fifteen years; that he went to work at two-seventeen a. m. on the day of his arrest and, while inspecting the cars of his train at the end of the line in accordance with instructions to look for articles left by passengers, he found the blackjack. He placed the article in the right side pocket of his coat but shortly thereafter a passenger asked him what he was doing with it and to avoid further questions he put it in his rear trouser pocket. When his tour of duty was completed the defendant, having forgotten about the blackjack, did not turn it in to the proper office as required by the rules. He went to his home and forgot that he had the blackjack. He also testified that he was suspended for two days by his employer for failure to observe the rule requiring him to turn in articles found in trains.
The defendant’s wife testified that they had been married for four and a half years; that she had never seen the blackjack at any time. She also testified that she was employed and that the defendant helped support her mother who lived with them.
The court found the defendant guilty and then suspended sentence because of his good record and the fact that he had not tried to hide the blackjack.
The People contend that under subdivision 1 of section 1897 of the Penal Law any one who “ carries, or possesses, any instrument, or weapon of the kind commonly known as a blackjack * * * is guilty of a misdemeanor,” and that no evidence of an intent to use the blackjack is required, as mere possession constitutes a violation of the statute.
The appellant contends that where proof is presented which conclusively established that the possession is without any wrongful intention he may not be convicted of violating the statute. There is no evidence in the record from which an intent to use the weapon can be presumed or inferred.
In People v. La Pella (272 N. Y. 81), a case involving possession of a pistol, the court said: “ 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.”
*15Possession unexplained may constitute a violation of the Penal Law but it was never intended that despite a proper and convincing explanation mere possession should be considered a criminal act. The statute now under consideration was phrased in its present form in order to make wrongful possession a crime.
The defendant was following instructions and performing a civic duty in taking possession of this blackjack for the purpose of turning it over to the proper authority in the railroad company. Otherwise it might have fallen into the hands of some person who might have used it improperly. All the evidence in the case shows that the defendant made no improper use of the weapon. There was no attempt at concealment as part of the blackjack was protruding from the pocket of the defendant in full view of the police officer when he entered the defendant’s home. As a matter of fact, on the proceedings at which sentence was suspended by the court, the presiding justice stated: “ You didn’t hide that blackjack. It was in plain view.”
The uncontradicted testimony in the record sustains the contention of the defendant that he picked up the blackjack in the subway train on which he was employed as a conductor, in accordance with his instructions and for the purpose of turning it over to the proper representatives of the railroad company. It negatives the presumption that possession of the blackjack implied an intention to use it. We must conclude, therefore, that the possession by the defendant was temporary and incidental and for the purpose only of giving the article to the officials of the company.
Incidentally, it may not be amiss to advert to the fact that the dissenting opinion is based upon conjecture and surmise. The prevailing opinion is based only upon the facts contained in the record. If this defendant had a prior conviction, that fact might be taken into consideration. Instead, we have before us a defendant of good character, who has been continuously employed by the Interborough Rapid Transit Company for fifteen years. The courts have constantly held that good character should be taken into consideration in a case of this kind, and that it may of itself create a reasonable doubt, when without it none would exist.
The judgment of conviction should be reversed and the information dismissed.
Townley and Dore, JJ., concur; O’Malley and Untermyer, JJ., dissent and vote to affirm.