The People of the State of New York ex rel. Loren J. Walters, Relator, v. Edson Lewis, as Police Commissioner of the City of Mount Vernon, New York, Respondent

The People of the State of New York ex rel. Loren J. Walters, Relator, v. Edson Lewis, as Police Commissioner of the City of Mount Vernon, New York, Respondent. Second Department, March 9, 1906. Certiorari to review dismissal of police officer — dismissal upheld — evidence — when cross-examination as to past record is admissible. When, on certiorari to review the proceedings of a police commissioner in discharging the relator from the police force, it appears that the relator’s only excuse for failing to report to the station house by telephone, as required by the rules, and for returning drunk the following morning was that he drank whisky to relieve an alleged interstitial nephritis, the" proven neglect of duty ", warrants the dismissal. It is not reversible error to compel such police officer to testify on cross-examination that he had been tried several times and found guilty on similar charges. ' And whether error or no, when the police commissioner certifies that the relator’s discharge was based on his last dereliction, and not on his past record, his determination will be upheld. 1 It seems, that the "strictest technicalities of evidence are not to be required at administrative trials when the presiding officer is not a common law lawyer or judge. Hookes, J., dissented, with opinion. Certiorari issued- out of the Supreme Court and attested on the 15th day of September, .1904, directed to Edson" Lewis, commanding him, as police commissioner of the city of Mount-Vernon, to-certify and return to the office of the clerk of the county of Westchester all and singular his proceedings'liad in relation to the removal of the. relator from the police force óf the city of Mount Vernon., Sydney A. Syme, for the relator. Isaac N. Mills, for the respondent. [MAJORITY — Gaynor, J.:] 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. [DISSENT — Hooker, J.] Hooker, J. (dissenting): The relator was charged.with.willful-disobedience of orders.in failing to make telephonic reports to the station house from his beats. The evidence upon the merits was conflicting and the question close, and it is apparent that a slight variance in favor of the relator might have turned the judgment the other way. On cross-examination the relator was asked: “ Q. How many times from the time you first came on the force down to the present time have you been' charged with violation of the rules and either admitted your guilt and been found guilty or punished'? • Mr. Syme: I object to any examination on that line upon the ground that it is incompetent and an indirect manner of proving the conviction upon another charge, which is not admissible for the purpose of this trial. Mr. Bell: These questions are all proper for the purpose of testing the witness’s credibility. The Commissioner: I shall ride against Mr. Syme. Mr. Syme: Exception. * '* * Q. Is it not 'true that on December 26, 1901, you. were charged with absence without leave and fined two days’ pay ? ■ Mr. Syme : I object to the form of the question upon-the samé grbunds as formerly. The Commissioner: I shall rule in favor of Mr, Bell. -Mr. Syme: ^Exception. ,Q. Is that true? A. Yes, sir.” Over similar objection the prosecuting attorney was allowed to ask and the relator answered that he was convicted on April 26, 1902, June 5, 1902, December 4, 1903, and December 18, 1903, and stated the punishment he received upon each conviction. It is the established law that “In determining the guilt of a police officer, who is on trial for charges preferred against him, the police commissioners cannot act upon their own knowledge. The charges must be tried upon evidence and the guilt must be established by evidence produced before the commissioners upon the trial. * * * But in inflicting the punishment they may take into consideration the evidence, as well as their own knowledge of the police officer, and inflict such punishment, authorized by the rules and the statutes, as in their judgment the case, in view of all the circumstances, requires.” (People ex rel. McAleer v. French, 119 N. Y. 502, 507; People ex rel. Clarke v. Roosevelt, 168 id. 488, 489.) From the record now under review it is apparent that the police commissioner considered the evidence of the relator’s prior convictions in determining the question of his guilt under the charges he was then trying. His return states that “ Appended hereto and marked Exhibit { A ’ is the record of all the proceedings had upon the charge preferred against Loren J. Walters on the 26th day of ■ February, 1904, for disobedience of orders'in failing to report from certain telephone boxes and all testimony taken upon the trial of the said Loren J. Walters, alb statements made upon said trial, together with all objections, specifications, proceedings, exceptions, charges, judgments, orders and convictions touching upon said matter.” The proceedings which have been quoted, showing the relator’s testimony on his cross-examination in respect to prior, convictions, included what was so “appended” to the return of the respondept. The 2d paragraph of the return states: “ I certify that so much of said evidence as was offered an.d received in support of the charge preferred was considered by me in determining the question of guilt of said. Loren J. Walters upon said charge, and that so much of said record as was not so received was exclusively considered by me in determining the question of the punishment to be inflicted upon him upon his conviction.” It is apparent, therefore, that all of the evidence received upon the trial before the commissioner was considered by him in determining the question of Walters’ guilt. Evidence of his prior con'victions was received, and hence that .must have been considered by the commissioner in determining this question of guilt. The return itself shows that some matters were exclusively considered in determining the question of punishment, but according to the return itself only that part of the record that was- not .received in evidence was so considered. It affirmatively appears,, therefore, from the return of the police commissioner itself that he considered the record of former convictions upon the question of guilt, and this he should not have done under the authorities cited. The determination of the commissioner should-be annulled, with costs,. Determination confirmed, with costs.