People ex rel. Brady v. Moss

Appellate Division of the Supreme Court of New York

People ex rel. Brady v. Moss

56 N.Y.S. 951, 38 A.D. 633

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 17, 1899

StatusPublished

This text of 56 N.Y.S. 951 (People ex rel. Brady v. Moss) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Brady v. Moss, 56 N.Y.S. 951, 38 A.D. 633 (N.Y. Ct. App. 1899).

Pincite

Opinions

BARRETT, J.

The charge against the relator was that "at the Twentieth precinct station house, No. 434 West Thirty-Seventh street, at 2 p. m., February 18, 1897, [he] was so much under the influence of liquor as to be unfit for duty.” He was found unconscious on this day in front of No. 219 West Fortieth street, and taken to the station house named in the charge. He remained there for nearly three hours. From the station house he was taken to the Second district court, where he was fined one dollar. The testimony against the relator shows that he was unconscious, or partially so, that his breath smelled.of liquor, and that he acted like a man who was drunk to stupefaction. On the other hand, it appears that he complained of being unwell on the morning in question, and was excused from roll call. It was his off day, and he went home. The relator and his wife both testify that she advised him to take some quinine and whisky, and that he did so. His wife was then sick in bed, and she asked him to go to a druggist’s to get her some medicine. He did not want to go, because of his own illness; but, as there was no one else to send, he finally started out upon this errand. The druggist's shop was at the corner of Broadway and Forty-First street. On the way he fainted. He says that this was due to his sickness, and that he had not previously taken enough whisky to affect him. He is corroborated as to the occurrence on the street by Lemmon, to all appearance an absolutely disinterested witness. The latter says he met the relator on West Fortieth street; that he was very pale, but walked steadily, and showed no sign of intoxication; that just as they passed each other the relator collapsed; and that he (Lemmon) [952]*952got a tumblerful of brandy and poured it down the relator’s throat. The manager of the hotel where the brandy was obtained corroborated Lemmon as to its procurement. Upon this evidence, the relator fairly acquitted himself of the charge made against him. He certainly cannot be held to be in fault for the brandy which he thus swallowed while unconscious. People v. French, 119 N. Y. 504, 23 N. E. 1061. Consequently the sole basis for the charge against him was the quinine and whisky which he took at home. But if the relator, even without a physician’s direction, in good faith took a moderate dose of quinine, mixed with whisky, for his ailment, he was guilty of no offense justifying his dismissal. According to his own testimony, corroborated by that of his wife, this is all that he did, and there is nothing to contradict or impeach him on that head. As to the brandy, and his condition on the street, he is, as we have seen, directly corroborated by Lemmon, who says that his face was pale, instead of being flushed, and that he walked steadily. If his collapse had been due to liquor, his gait and whole demeanor on the street would have shown unmistakably the fact of his intoxication. The testimony against the relator is perfectly compatible with the evidence in his favor. Because he was unconscious or stupefied, and his breath smelled of liquor, the witnesses for the respondents not unnaturally thought that it was a case of voluntary intoxication. But the uncontradicted and unimpeached evidence in his behalf shows that he fainted from sickness, and that he had not voluntarily and consciously drunk such a quantity of liquor as could intoxicate him or unfit him for duty. The defense here made is a common one in this class of cases, and invites careful scrutiny, but still it must not be disregarded when it is fully and fairly established.

The proceedings before the magistrate cannot in any way bar or prejudice the relator. Whatever weight might be attached to the mere fact of the fine is balanced by evidence that the magistrate professed himself as doubtful about the case, that he imposed the lightest fine possible, and that he expressed his willingness to remit it.

The proceedings should be annulled, with $50 costs and disbursements, and the relator reinstated. All concur, except McLAUGHLIN and BUMSEY, JJ., dissenting.

Free access — add to your briefcase to read the full text and ask questions with AI

BARRETT, J.

The charge against the relator was that "at the Twentieth precinct station house, No. 434 West Thirty-Seventh street, at 2 p. m., February 18, 1897, [he] was so much under the influence of liquor as to be unfit for duty.” He was found unconscious on this day in front of No. 219 West Fortieth street, and taken to the station house named in the charge. He remained there for nearly three hours. From the station house he was taken to the Second district court, where he was fined one dollar. The testimony against the relator shows that he was unconscious, or partially so, that his breath smelled.of liquor, and that he acted like a man who was drunk to stupefaction. On the other hand, it appears that he complained of being unwell on the morning in question, and was excused from roll call. It was his off day, and he went home. The relator and his wife both testify that she advised him to take some quinine and whisky, and that he did so. His wife was then sick in bed, and she asked him to go to a druggist’s to get her some medicine. He did not want to go, because of his own illness; but, as there was no one else to send, he finally started out upon this errand. The druggist's shop was at the corner of Broadway and Forty-First street. On the way he fainted. He says that this was due to his sickness, and that he had not previously taken enough whisky to affect him. He is corroborated as to the occurrence on the street by Lemmon, to all appearance an absolutely disinterested witness. The latter says he met the relator on West Fortieth street; that he was very pale, but walked steadily, and showed no sign of intoxication; that just as they passed each other the relator collapsed; and that he (Lemmon) [952]*952got a tumblerful of brandy and poured it down the relator’s throat. The manager of the hotel where the brandy was obtained corroborated Lemmon as to its procurement. Upon this evidence, the relator fairly acquitted himself of the charge made against him. He certainly cannot be held to be in fault for the brandy which he thus swallowed while unconscious. People v. French, 119 N. Y. 504, 23 N. E. 1061. Consequently the sole basis for the charge against him was the quinine and whisky which he took at home. But if the relator, even without a physician’s direction, in good faith took a moderate dose of quinine, mixed with whisky, for his ailment, he was guilty of no offense justifying his dismissal. According to his own testimony, corroborated by that of his wife, this is all that he did, and there is nothing to contradict or impeach him on that head. As to the brandy, and his condition on the street, he is, as we have seen, directly corroborated by Lemmon, who says that his face was pale, instead of being flushed, and that he walked steadily. If his collapse had been due to liquor, his gait and whole demeanor on the street would have shown unmistakably the fact of his intoxication. The testimony against the relator is perfectly compatible with the evidence in his favor. Because he was unconscious or stupefied, and his breath smelled of liquor, the witnesses for the respondents not unnaturally thought that it was a case of voluntary intoxication. But the uncontradicted and unimpeached evidence in his behalf shows that he fainted from sickness, and that he had not voluntarily and consciously drunk such a quantity of liquor as could intoxicate him or unfit him for duty. The defense here made is a common one in this class of cases, and invites careful scrutiny, but still it must not be disregarded when it is fully and fairly established.

The proceedings before the magistrate cannot in any way bar or prejudice the relator. Whatever weight might be attached to the mere fact of the fine is balanced by evidence that the magistrate professed himself as doubtful about the case, that he imposed the lightest fine possible, and that he expressed his willingness to remit it.

The proceedings should be annulled, with $50 costs and disbursements, and the relator reinstated. All concur, except McLAUGHLIN and BUMSEY, JJ., dissenting.

Cite This Page — Counsel Stack

Bluebook (online)

56 N.Y.S. 951, 38 A.D. 633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-brady-v-moss-nyappdiv-1899.

Opinions

Related

Cite This Page — Counsel Stack