Rudolph v. Creamer

39 App. D.C. 1, 1912 U.S. App. LEXIS 2178

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 6, 1912
• Docket: No. 2384
• Status: Published

Opinion

Mr. Justice Kobb

delivered the opinion of the Oourt:

At the outset it may not be amiss to direct attention to a rule to which we have hitherto frequently given our assent, namely, that, inasmuch as the writ of certiorari is issued only in the sound discretion of the court, it “should never be granted except when required to effect substantial justice, nor in any case to give effect to mere technical objections, or to allow a party to avail himself of mere irregularities in the proceedings complained of.” District of Columbia v. Burgdorf, 6 App. D. C. 471; District of Columbia v. Brooke, 29 App. D. C. 563. And this court has jurisdiction to inquire, on an appeal from an order of the supreme court of the District, granting the writ, whether that court has exercised its discretion in accordance with established rules and precedents governing the exercise of its jurisdiction. Billings v. Field, 36 App. D. C. 16.

The first question involved relates to the sufficiency of Charge 4 of the complaint upon which Mr. Creamer was tried. The gist of that charge is that the accused was insubordinate in refusing to inform his superior officers as to the nature of his. business in said garage upon the occasion mentioned. This the accused fully understood, as the record clearly discloses. While a member of the police force may not be removed except upon written charges (act of June 6, 1906, 34 Stat. at L. 221, chap. 3056), Congress did not intend to require such charges to be formed with the technical accuracy of an indictment for crime. If the nature of the dereliction forming the subject-matter of the investigation is pointed out with sufficient clearness and accuracy to enable tbe accused to prepare his defense, tbe purpose of tbe statute is met. Joyce v. Chicago, 216 Ill. 471, 75 N. E. 184; People ex rel. Carney v. Scannell, 80 App. Div. 322, 80 N. Y. Supp. 685.

Tbe reference to tbe particular section of tbe Police Manual wbicb it was supposed tbe acts complained of violated was entirely unnecessary, and hence may be disregarded on appeal. State v. Dewey, 55 Vt. 550; Williams v. United States, 168 U. S. 382, 42 L. ed. 509, 18 Sup. Ct. Pep. 92. Had tbe objection now urged been made before tbe trial board, where it should have been made, if at all, it would have taken but a moment to insert sec. 11 in tbe place of sec. 142. This objection was an afterthought and is devoid of merit.

Tbe second point is hardly worthy of notice. That a member of tbe police force, upon being discovered by a superior officer in a position apparently inconsistent with the proper performance of bis duties, may, while insisting that be was acting properly, decline to give any further information to bis superior officer, upon tbe ground that to give such information be would in effect be testifying against himself, is a contention to wbicb we cannot lend our assent. Such a practice, if approved by us, would, we are convinced, be so subversive of discipline as greatly to impair tbe efficiency of tbe police force. There is so much difference between an accusation of dereliction of duty and a charge of crime, that further comment is unnecessary. It may be, however, in view of tbe prevalence of the idea among members of tbe force that.they bad tbe right to defer tbe making of a statement until brought to trial, that tbe sentence of dismissal was severe; but with that we have nothing to do.

Tbe judgment must be reversed, with costs, and tbe cause remanded for further proceedings. Reversed.