
    People ex rel. Patrick T. Morris, App’lt, v. James J. Martin et al., as Police Commissioners, etc., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 15, 1895.)
    
    Municipal corporation—Police—Discharge.
    The finding by police commissioners that a charge against a police officer is true, where there is sufficient evidence to sustain it, will not be disturbed.
    Certiorari to review the action of the board of police commissioners, in adjudging the relator guilty of conduct unbecoming an officer, and discharging him from the force.
    
      Louis J. Grant, for relator; Wm. H. Clark, for respondents.
   Parker, J.

The captain of the Second precinct, about October 23, 1889, charged patrolman Morris, this relator, before the board of police commissioners, with neglect of duty and conduct unbecoming an officer, the specification being:

“ Said patrolman Patrick T. Morris did during his tour of patrol duty, on the evening of October 21, 1889, at 10:30 o’clock, leave his post, and enter the liquor store of John Campbell, corner of Albany and West streets, and engage in an altercation witli William F. Campbell, barkeeper, and drew a pistol on said Campbell, and discharged the same, not in self-defense.”

A hearing was had, in the course of which Morris testified in his own behalf, and it resulted in a finding that the charges were true, and Morris was dismissed from the force.

This court is asked on this proceeding to reverse the decision of the police commissioners. Whether the specifications were in all respects true may possibly be open to debate. But there was one incident of that occasion, about which there is no controversy whatever, which could have been added to the specifications without in any way weakening the force of the charge, namely, that William F. Campbell was killed by the discharge of the pistol by Morris. Patrick Rice, a bartender in the employ of John Campbell of No. 86 West street, testified that.:

“ On the evening of October 21st, William F. Campbell, the dead man, was in the store. That about 20 minutes past 10 officer Morris came into the store, and asked witness for a whiskbroom, which he used upon' his coat, and went out. A few minutes later he opened the door, and beckoned me to come out, and he inquired. ‘Who is that tall young man standing in front of the bar with a white coat on? ’ I says, ‘ That is the boss’ brother.’ He says, ‘ He has got a revolver in his pocket.’ Officer Moody, who was standing by, said to officer Morris, ‘ He has got a permit to carry it.’ Morris said, ‘ I don’t care whether he has or not, I. am going to take it off him,’ And he walked up to Mr. Campbell, and said, ‘Young man, you got a revolver in your pocket.’ Campbell said, ‘I have not.’ ‘What did you do with it?’ he said, running his hand in his coat pocket. Campbell said, ‘ It is behind the bar.’ So Mr. Campbell walks around behind the bar, and took off "his overcoat and undercoat and hat, and picked up the revolver, and held it behind his back like this, and says, ‘I am in my place, and I don’t give a damn for you, although you are an officer.’ Morris' put his hand in his hip pocket, and pulled out his revolver, and he says, ‘You are not the only man that’s got a revolver, and if you don’t leave that down on the bar I will shoot you dead.’ He [Campbell] did leave the revolver down, and he [defendant] says, ‘ If you don’t leave that there till I go around and take you out, I will shoot you dead ’; walking around behind the bar. Mr. Campbell picked up his revolver, and walked with it behind his back towards Morris. He [defendant] says, ‘ You leave that revolver down again ; if you don’t, I will shoot you dead.’ Mr. Campbell left it back on the bar. He [defendant] ran and grabbed hold of Mr. Campbell with his right hand. He had the strings of his club around his hand like this,' and the club in his hand, and he told him again he would shoot him dead. Leaving him stand at the end of the bar, he walked in behind the bar. I picked up the revolver, and laid it under the cigar case, where he first took it from. Morris went to end of the bar, where he left him in charge of officer Moody, and he says, Where is that revolver ? ’ Campbell made no answer. He walked behind the bar again,—walked twenty-four or twenty-five feet behind the bar,—picked up the revolver where I left it down, and walking to Mr. Campbell; and about three feet from Campbell he raised it in his hand, like that, and fired at him. Q. He said nothing "at the time he fired the revolver? A. I could not say he said anything. Q. He held his hand up like that? A. He held his hand up like that, pointing the revolver down.”

The relator’s version of the transaction is somewhat different. He said :

“I says to Moody, ‘You stay there, and I will get the pistol away from him.’ I entered the liquor store, and I says to Campbell, ‘You better leave that pistol behind the bar, or give it to the bartender; you are not fit to dairy a pistol’ He says, have a permit to carry it.’ I says, ‘ If you have a permit you should not abuse it, as you did down street a few minutes ago.’ He rushed behind the bar, and took his two coats and hat off, and took the pistol out of his overcoat pocket, and put his hand on the bar, and says, ‘You get out,’ pointing the pistol at me. Isays, ‘Don’t point that pistol at me; you put that revolver down, or I will shoot you.’ Q. You said that? A. Yes. Then he put the revolver behind the bar, and he came out from behind the bar, and he took hold of my stick and tried to get it away from me. Moody seen him and me together, and he jumped in,—officer Moody. I says to Moody, ‘You take hold and keep him there, and I will get the pistol’ I walked behind the bar, and took the pistol, and took it in that manner (holding hand out); and came out from the bar. I lifted the pistol in that manner,—it was a self-cocking pistol, double action pistol,—and as I did it struck on the bar, and the pistol went off. Moody threw up his hands, and I said, ‘ My God, Moody, it is an accident! ’ I thought Moody was shot. Then I see the man drop.”

Other witnesses gave their recollection of the occurrence. While they differ as to certain details, there was evidence adduced in support of every material allegation of the specifications. Indeed, there is no controversy about any of the allegations save one, for he did leave his post of duty; entered the liquor store of Campbell; engaged in an altercation with William F. Campbell; discharged a pistol, and did not do it in self-defense, for Campbell was at the moment under arrest by officer Moody. The dispute arises over the specification that he drew the pistol on Campbell. Morris says that its discharge was an accident. It is not unlikely that that may have been so, but that he pointed it towards him, and intended to do so, there is no reasonable chance for doubt. His purpose may have been to impress the residents of this, to him, new precinct that he was a dangerous officer to trifle with. Whatever the purpose, the finding of the commissioners that he drew the pistol on Campbell has sufficient evidence to support it. Within the rule of People ex rel. McAleer v. French, 119 N. Y. 502; 30 St. Rep. 72, and People ex rel. Masterson v. French, 110 N. Y. 494; 18 St. Rep. 231, the action of the police commissioners must be sustained. The writ should be dismissed, with costs to the respondents.

O’Brien, J., concurs.

Van Brunt, P. J.

I concur. It looks as though the relator was guilty of murder.  