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 *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,
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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
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possession ” forbidden by the statute
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should not be construed to mean a possession * * * which might result temporarily and incidentally from the performance of some lawful act ”
(People
v.
Per see,
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.