People ex rel. Wells v. Hart , 49 N.Y.S. 268 ( 1898 )

Willard Bartlett, J.:.

The relator was a patrolman on the Richmond county police force. He was tried by the police commissioners under section 13 of chapter 108 of the Laws of 1897, upon a charge of disrespect toward his superior officer and conduct unbecoming an officer. There were two specification's. The first alleged that while on duty at Hew Brighton on the night of August 24,1897, the relator, when asked by his superior officer, Roundsman Frank S. Hodge, if he, Patrolman Wells, was off duty, said: “Ho. Ho jay like you can pound me; if you do you will take a tumble.” The second specification alleged that subsequently, on the same evening, in the same neighborhood, the relator said to three persons: “That” (using an exceedingly opprobrious epithet) “ is trying to pound me; ” thereby referring to the aforesaid roundsman, Frank S. Hodge.

■ Upon the hearing before the police commissioners the relator was declared not guilty upon the first specification, but adjudged guilty of the charge as stated and set forth in the second specification. Only two witnesses testified that the relatormade use of the language set out in the second specification, and neither of them would say that the remark was spoken of or addressed to the roundsman. Even the roundsman himself was unwilling to assert that lie understood the words, to apply to him, for when asked by the relator whether he interpreted the insulting term as applicable to himself, the rounds-man responded: “ Will not swear to that; haven’t testified to that fact; testified to your remarks.” The other witness who heard the words used said he had not any idea to whom the relator alluded until the roundsman stepped out from a neighboring store into view just as the "remark was made. Then he says it came to his mind that the conversation might have been directed toward Hodge.

In the evidence of the persons who actually heard the words spoken, there seems to be absolutely nothing to show that they were spoken of and concerning the roundsman. If, however, the relator, earlier in the evening, had accused the roundsman of “ pounding ” him, as set out in the first specification, the police commissioners might very well have inferred that the relator had the roundsman in mind arid intended to characterize his conduct in what he said subsequently. But it is impossible to see how the commissioners could have acted on this view, for they acquitted the relator of the charge as stated in the first specification. As the case stood, therefore, when the commissioners came to pass upon the second specification there was no circumstance tending-in the slightest degree to show to what person the relator referred by the improper language he is said to have used. Their action in regard to the first specification was in substance a determination that he had not previously said anything about the roundsman “ pounding ” him; and without that statement the objectionable epithet subsequently used might just as well have referred or applied to anybody else as to the roundsman.

This court is committed to the proposition that the technical formality of a criminal prosecution need n'ot and should not be required in proceedings to discipline police officers. (People ex rel. Powers v. Welles, 18 App. Div. 132.) I am not disposed in the least to qualify what was said on that subject by Mr. Justice Cullen in the case cited. It seems to me, however, that the defect here is very much more than a mere irregularity or informality. If the commissioners were right in their decision upon the first specification, there was no evidence in the case except that which they had already rejected as unworthy of credit that would permit any judicial tribunal to find that the second specification was true.

In my opinion the determination ought to be annulled.

All concurred, except Hatch and Cullen, JJ., dissenting..