People ex rel. Walters v. Lewis

111 A.D. 375, 97 N.Y.S. 1057, 1906 N.Y. App. Div. LEXIS 170

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 1906
• Status: Published

Opinions

Gaynor, J.:

The evidence against the petitioner that he neglected during the night to report by telephone to the station house from the places established on liis beat for that purpose was not disputed, and that, he returned to the station house drunk the next morning is scarcely questioned. His dismissal was, therefore, an act of" duty, unless his excuse was a good one, for such men have no businéss on a police force." '

The testimony of the petitioner is that he had been afflicted for two years or more with interstitial nephritis, and its accompanying heart pains, and that he-had frequent recurring' attacks thereof, thirty in two years,^more than "one a month; that he had three attacks of heart pain during .this night, the first at about eleven o’clock; that.he got some.whisky in. a bottle and drank it at intervals on liis" beat, and remembered nothing thereafter, and was .unable to give any account of" himself, except that he barely remembered his return to the station house in the. morning.

His own ;evidence established the case of neglect charged against him, for if he was taken sick' it was his duty to report the fact by telephone or in person, or' in some way, so that liis b'éat .might, be covered. His- neglect to do this was a neglect, to cover liis beat and report at intervals as required. There was, therefore, no question that the charge against him was established, and that does away with all technicalities of evidence. ■

But his excuse was plainly . without foundation. -Though he claimed to have suffered from chronic nephritis and its pains for more than "two years, he never reported the fact to the police surgeon, as Was his duty., Tie had been on the force -about two years and eight months, and when lie was appointed lie was carefully examined and found to have no disease.

All that is ,elaimed is that his dismissal must be reversed on the technical ground that on his cross-examination he was required to testify to having been several times tried on similar charges of neglect of duty, viz., absence without leave five times and intoxication while on duty once, and found guilty of them and fined.

This seems not to have been error' according to strict common-law rules of evidence. That he had committed six derelictions similar to that he was being tried for in the short period of his police service was competent on his cross-examination on the .question of the probable credibility of his excuse in the' present case. That rule is applied even on trials for crime (People v. Casey, 72 N. Y. 393; People v. Noelke, 94 id. 137; People v. Irving, 95 id. 541; People v. Giblin, 115 id. 199; People v. Webster, 139 id. 73) as well as in a case like this (People v. Reavey, 38 Hun, 424; People v. Dorthy, 156 N. Y. 237; Shepard v. Parker, 36 id. 517).

But even if this were not so, the police commissioner had the right to examine his whole record as a policeman to determine what punishment to impose on him, and whether he did that during the trial or after retiring from the bench, or had it all in mind from personal ■ experience or previous examination,, does not matter. Although a police commissioner of a small city like this may be presumed to know the record of all of his men, he is not thereby disqualified from trying them. Indeed, that fact better qualifies him to try them. It will not do for the courts to be so technical and finical in such matters. They have already gone far in that respect, according to just intelligent opinion. Ho one can delude himself with .the notion that a police commissioner fit to hold his place will try a policeman without referring to his record and knowing the sort of man he is. To hold that the commissioner may read the policeman’s record, but-that if he has it put before him on the trial his judgment will be reversed, would, it seems to me, be absurd. In the case of People ex rel. Clarke v. Roosevelt (168 N. Y. 488) the conviction was upheld although the commissioners examined the policeman’s record before finding him guilty; and that is all that was done in this, case, turn it how you will.

The presumption is that the commissioner did his duty, and found the petitioner guilty on the evidence of his present dereliction and not on his past record. Indeed, he so certifies, not very aptly, it is true, but unmistakably after all, certainly as plainly as in. the Clarke case, and it would be altogether too .critical to interpret his . certificate to the cdntrary, The technical common-law rules of evidence which are applicable to jury trials, and some of which many think might well be relaxed or done away with even in jury trials after the manner of such trial's in England; do not apply to admin - ■ istrative trials like this. Police commissioners are ndt technical common-law lawyers or judges.

The question for this Court is whether there is sufficient evidence thaf the petitioner neglected his duty as charged. If there is, then the presumption is that he was found guilty on that evidence, and mot because of past offenses. Any other rule would lead to undue interference and disorder. . ;

The judgment of the commissioner should be upheld.

Hieschbebg, P. ’ J., Woodward and Jenks, JJ., concurred; Hooker, Jl, read for reversal.