The opinion
Scott, J. (dissenting):
I am unable to concur in the construction given by my brother Clarke to section 1891 of the Penal Law, as amended by chapter 195 of the Laws of 1911. I fully recognize the useful rules of construction compiled by him from numerous reported cases, but there is one other rule, to which he does not refer, but which is well settled, which is that every statute shall be given a reasonable construction, where its language is susceptible of more than one construction, and in determining what is a reasonable construction, regard is to be had not only to the language but also to the evil sought to be guarded against and to the nature, of the remedy provided. This is especially true of statutes like the one now under consideration which is highly penal, creates a crime out of that which was formerly lawful and relies for its authority upon the existence of that somewhat vague and shadowy right known as the police power.
*426 It is entirely clear, and is not disputed that prior to the amendment of 1911 it was not unlawful for a resident over sixteen years of age to have and keep in his house, but not on his person, a pistol, and no provision was made for a license for such possession. The purpose of the present act was to prevent the use or the temptation to use pistols hastily, improperly or unnecessarily. The opportunity and temptation so to use a pistol is undoubtedly greater when such a ■ weapon is in the physical possession of a person than when it is merely in his constructive, possession, and the evident purpose of the act can be completely carried out without giving a forced meaning to the word “possession” as used in the amendment. That the Legislature intended that its prohibition should be confined to pistols carried on the person, and thus in the physical possession of the owner, seems to me to be strongly indicated by the limitation of the articles prohibited to pistols “of a size which may be concealed upon the person.” Under the construction now sought to be given to the act it would be perfectly legal to keep at one’s bedside or in a cabinet a blunderbuss or a horse pistol, or whatever modern weapons correspond in size to those ancient arms, but unlawful to so keep their smaller relative, of a size that might be concealed upon the person. And when we come to consider the size of pistols thus forbidden, it is clear that it must be considered with reference to a clothed, and not an unclothed, person for it is difficult to conceive of a lethal weapon so small that it could be concealed upon the person otherwise • ' than by clothing.
In determining the construction to be given to a particular clause in a section of the act we should consider the whole section, and the sense in which similar words are used. The ¡ purpose of the whole section is clearly to provide, so far as legislation will be effective for said purpose, against the carrying of pistols by criminals and other persons who may, it was feared, make an improper use of them. It was not intended to ' absolutely and entirely prohibit such carrying because provision is made for the issue- of licenses to persons approved by certain magistrates.
Of course no such prohibition can be completely effective with- respect to the class of persons against whom it is princi *427 pally directed, and probably no one ever thought it would be, but the best the Legislature deemed it possible to do was to enact the prohibition and attach a heavy penalty for its violation. The practical result of the construction now sought to be given to the act will be that the professional criminal will generally violate the act and take his chances of discovery and punishment, while the law-abiding citizen will be obliged to disarm himself of his only effective protection against the predatory classes. The best police force in the world cannot always, or even usually, anticipate and prevent crimes of violence. They can and usually do preserve peace and order, and sometimes discover the perpetrators of crimes, but they can seldom prevent. A law-abiding citizen in his walks abroad can usually avoid dangerous localities, and if he is compelled to traverse them can obtain a license to carry a defensive weapon, but in his own house, wherever it may be situated, he can never be entirely secure against the midnight marauder. For protection there he is compelled to rely upon himself and upon such means of defense as he may have at hand. The construction now sought to be given to the act would deprive him of such protection.
I am, therefore, satisfied that the true construction of the act, and one which does no violence to its language, is that adopted by the learned justice at Special Term, and which accords well with the reasonable construction given to section 1897 of the Penal Law in People v. Persce (20417. Y. 397).
The order appealed from should be affirmed.
Ingraham, P. J., concurred.
Order reversed, writ quashed and relator remanded. Order to be settled on notice.