
    THE PEOPLE, Etc., ex rel. FRANK C. BOEKELL, Relator v. CHARLES F. MacLEAN, et al., Commissioners, etc., Respondents.
    
      Certiorari to review the action of the Board of Police Commissioners in removing the relator from the police force of the city of New Torlc.
    
    The relator was tried by the police board on charges preferred to said board that the relator was so much under the influence of liquor as to be unlit for duty at 1.33 p. m. January 1, 1891, at the expiration.of his tour of patrol'duty. The facts in the case appear fully from the points of counsel and the opinion of the court.
    
      Held, that the testimony in support of the charges, was sufficient to sustain them were it not for the explanation offered by the relator, which seems to be fully sustained by the evidence on his part, and takes the sting out of the charge and shows that the conduct complained of was not a breach of discipline but the result of an accident. The rule undoubtedly is, that the commissioners are the statutory judges, and when they find on conflicting evidence their judgment should not be set aside except in a case where a verdict of a jury would, under like circumstances, call for the exercise of the supervisory power of the court to correct error and injustice. There is no conflict of evidence here that makes the finding of the commissioners so sacred that it should not be the subject of review. If the facts are as sworn to by the relator and the two citizens, that the relator’s horse slipped and he was thrown to the ground and rendered unconscious, and the citizens gave him whiskey which by the subsequent heat of the radiators in the station-house put the relator in a doze, it cannot be truthfully said that the relator was guilty of voluntary intoxication or of conduct unbecoming an officer. The commissioners should not have disregarded the evidence of the two citizens. They were disinterested and unimpeached witnesses and not even contradicted, and their story was highly probable. The commissioners, while exercising quasi-judicial functions, must weigh the testimony offered before them according to legal rules, and give effect to explanations which tend to mitigate or explain away the offense charged. Eor the failure of the commissioners to give proper effect to explanations offered, their adjudication must be reversed and the relator restored.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
    
      
      Decided January 11, 1892.
    Certiorari to review the action of the board of police commissioners of the city of New York, in removing Frank C. Boekell, the relator, from the Police force.
    
      Louis J. Grant, attorney and of counsel, for relator, argued:—
    1. The weight of evidence is clearly against the finding, and the action of the respondent should be reversed on that ground. See § 2140 Code. The only evidence to support the charge is, first, that of the captain. He testified against objection, simply that the relator was in his opinion intoxicated ; later on in his examination he testified in support of this opinion or conclusion. “ I saw him taking his saddle and equipments back to the saddle room; he staggered; his speech was thick, face was flushed, eyes were bloodshot.” Relator had just come in from performing his full tour of duty at that time, which was from 8 a. m. to 1 p. m., as this same captain admits. It will be observed that he attempts to support the conclusion of intoxication by saying “ he came in after a fashion.” He also admits that relator at 12 o’clock the same day, one hour and a half before he came in as above stated, had reported a box being out of order, and the captain had told relator to go back and try it again. He noticed no signs of intoxication then, and the idea of the influence of liquor did not then suggest itself to his mind. At 1.25 p. m., when relator last came in, he did not at first notice. anything. He walked alone from the stable to the station house. The next witness (Steinert) says, “ I smelled his breath, saw him walk ; ” he showed he was under the influence of liquor,” which last remark the commissioners refused to strike out, to which ruling there was an exception. He says, “ Examined his breath; a very foul smell, that of beer and liquor; a very foul breath ; looks as if he had something in his stomach not digested; seemed a little thick in his speech and staggered in his walk a little bit.” The witness admits that at that “ time relator denied he had been drinking, and had no breakfast or anything.” The witness then admits that he was called to examine him to find out if he was under the influence of liquor. Again, he says that the influence of liquor would have passed off at the time he examined relator because of the length of time since it must have been taken into the stomach, if at all. Kirchner, the next witness, says, “ Smelled of liquor and beer; while walking he staggered ; spoke unintelligently,” and, against objection, gave as his opinion, that he was intoxicated and unfit for duty, to which exceptions were taken. He contradicts the captain as to relator walking alone. Sergeant Brown, next witness, says, when relator was waked up, “ he staggered; witness caught him two steps.” This witness smelled his breath, and says “ no ” in answer to the question, Are you willing to swear it smelled of intoxicating liquor?” Roundsman Kehoe gave only the testimony that he was told to smell the breath of relator, who was then asleep, and it smelled of whiskey and beer. The relator swore that on that morning “ his horse fell and he fell; he was dazed ; ” was unconscious from the fall about five minutes; two citizens saw the witness ; he didn’t know until afterwards they had got him a glass of whiskey to drink; had eaten nothing that day; dismounted alone and walked alone; felt a sort of dizzy sensation come over him from the hit and accident. No complaint had ever been made of his being under influence of liquor before, though he had been four or five years on the force; reported sick and was sick one day after the time of the alleged intoxication ; tried the box about ten minutes of one o’clock ; two citizens saw the fall; Carney saw relator on the ground and his horse run away; he and the other citizen brought the horse back; relator said, “I got an awful toss ” ; witness got relator some whiskey, brushed his coat, saw no indication of the influence of liquor; he complained of a pain in his head. Nugent, the other citizen, testified to the same facts. Duggan, a mounted patrolman, saw relator on horseback about 12 o’clock that day, and he said to witness, I have to report a box out of order ” ; there was no indication of influence of liquor. The evidence shows that the relator was made to sit in a room where there were three radiators, for about two hours, until the doctor came. This was by order of the witness, Captain Cortright, who testifies that it was not customary to put a man charged with being under the influence of liquor in such a position. He says he had no feeling against Boekell, the relator, and yet the only reason he gives for his conduct is, that he Avanted him in a safe place, though he says the back room was the usual place to send persons so charged; that he remembered no exception to such rule. Cortright admits that he knew that if a man had taken liquor it would make its effects more marked to put him in a heated atmosphere. The witness Kirchner swears that persons so charged were either put in the back room or locked up, and he knew of no case where a man Avas treated as relator had been. Sergeant Brown was surprised to see relator there ; had never seen it done before. It Avas usual to have them sit in the hack room. Kehoe never knew of another ease Avhere an officer Avas so placed. That it is the province of the general term to reverse respondent’s action if the preponderance of evidence is against it, is provided by section 2140 of the Code, and the Court of Appeals have repeatedly so held, the last time in the People ex rel. O’Callahan v. French, 123 N. Y., 636, in w'hich Andrews, J., writing the opinion, says: The general term may set aside their adjudication on the merits if, although there may be some evidence to sustain it, the preponderance of proof is such that if the facts had been found by a jury on the trial of an issue in the Supreme Court, the verdict would be set aside as against the weight of evidence.” See also, People ex rel. McAleer v. French, 30 N. Y. State Rep., 72.
    II. The evidence that relator was not intoxicated, on the part of the defence, is that of himself, the two citizens and policeman Duggan. It is opposed to that given by Cortright, Steinert, Kirchner, Brown and Kehoe. Brown does not say he was intoxicated and he refused to swear that relator’s breath smelled of liquor. Kehoe says he smelled his breath when asleep. Beyond his breath smelling of liquor there is no testimony as to intoxication. It is true that Cortright, Steinert and Kirchner say relator was intoxicated. The facts on which they base these opinions are : First, Cortright— he staggered ; speech was thick; face flushed; eyes bloodshot; ” Steinert—“ seemed a little thick in his speech and staggered a little bit.” This witness in his testimony shows that when he saw relator he was not intoxicated because he swears that when he saw him the influence of the liquor must have passed off. Kirchner says, “ staggered and spoke unintelligently.” The man had nothing to eat the whole day ; had been on duty as a mounted policeman from 8 o’clock to lp.m.; had fallen from his horse, hit his head and then been kept sitting for two hours in a hot room. He might well feel faint and weak, talk thick, stagger, and even speak unintelligently. Steinert, the physician, was called expressly to examine the man, and can only say he seemed a little thick in his speech and staggered a little bit. The staggering was probably what Brown testified, that when he was first waked he staggered, and witness caught him in two steps. As Boekell had done his full duty, had reported at about 12 o’clock, and was sent back to examine the box (no suspicion then arising that he was intoxicated), met, on returning, Duggan and told him what he had to do, dismounted alone and walked alone to the station house, it is sufficiently clear that he must have been sober. The witnesses say his breath smelled of liquor. It would be wonderful if it did not, since he had drank liquor by the testimony of the two citizens. Their testimony shows that in drinking the liquor the relator was not responsible, because he was not conscious that he was taking it, the liquor having been procured and poured down his throat without his knowledge. To offset the testimony of relator’s having performed his duty without any complaint and without suspicion of his being under the influence of liquor, as well as the testimony of the relator, the two citizens and Duggan, there are only the opinions of the two witnesses Cortright and Kirchner, that relator was intoxicated. That these opinions are not competent proof was held by the general term, Supreme Court, First Department, in People, etc., ex rel. Theodore Balke v. French, 11 N. Y. Supp., 181, in which Barrett J. says : “ The relator seems to have been convicted merely upon the opinion of the officers.” The general term reversed respondent’s action in this case and the Court of Appeals affirmed the general term. The facts observed by these two persons, and which they swear to, are entirely consistent with the truth of the story told by relator and his witnesses. The relator cannot be charged with any fault in drinking the liquor, for the testimony shows that it was got without his knowledge and put down his throat, not only without his consent, but without any consciousness on his part that anything of the kind had been done. Any effect which the liquor may have had, if such there was, being involuntary, he was without blame, and the conviction cannot be upheld. [Peo. ex rel. Hogan v. French, 119 N. Y., 493.] Finch J., page 498, at the bottom: “ When the dose of brandy has been resorted to in a sudden emergency from a commendable motive and with a reasonable expectation that it will sustain the failing ability to perform duty, there is no breach of discipline, there is no conduct unbecoming an officer, and it does not become such because a partial intoxication supervenes which no one could reasonably have anticipated.” The case at bar is a much stronger one for the relator than the one just cited, because there the relator voluntarily and consciously took the liquor, though, of course, with a commendable motive, while Boekell was only a passive instrument in the hands of the two citizens, who without any consciousness or volition on his part, did that which in his judgment the situation demanded, to wit, poured the liquor down relator’s throat, a fact which he so little realized that he had to be told afterward that it had been done.
    III. The only evidence to support the charge is circumstantial. To justify a conviction on circumstantial evidence, the facts and circumstances must be such as to exclude every other reasonable or rational hypothesis than that of guilt. That the circumstances of staggering, foulness of breath, etc., are some proof of guilt if not explained, is admitted, but when an explanation is given which is reasonable and rational, and accounts perfectly for the circumstances, then those circumstances cease to he any proof whatsoever of guilt. In this case testimony was given by three witnesses, two of them entirely disinterested, which logically explains how such circumstances occurred, and shows that relator was innocent of the charge.
    
      William H. Clark, counsel to the corporation, and W. A. Sweetser of counsel, for respondents, argued:
    I. The board of police had jurisdiction of the subject matter of the judgment now under review, and its proceedings were regular. A written charge was preferred against the relator, a copy of the same was duly served upon him ; reasonable notice of the examination of the charge was given him. A public examination was held as was prescribed by the rules of the board, schedule C, and testimony was taken before one of the commissioners, and subsequently laid before and examined by the board of police. § 272 of the New York City Consolidation Act. It was competent for the board to prescribe rules 196 and 197. People, ex rel. Swift v. The Board of Police, 99 N. Y., 676. The punishment inflicted was warranted by the charge; rule 193, page 63. The following is rule 193 : “ Any member of the police force may be punished by the board of police, in their discretion, either by reprimand, forfeiture and withholding pay not exceeding thirty days for any one offence, or by dismissal from the force on conviction of any of the following offences, to wit, of intoxication * * * neglect of duty * * * * of conduct unbecoming an officer.”
    II. The judgment reached by the board upon the testimony, will not be disturbed by the court. “ It is manifest that the interest of the service required that a wide discretion should be vested in the commissioners in determining what conduct is injurious to the public interests and unbecoming an officer, and their judgment, unless there is an entire absence of evidence to sustain it, ought not to be disturbed.” Peo., ex rel. Walter J. Bradley v. French, 7 N. Y. State Reporter, 253. There is preponderance of proof in the case at bar. “ The power of the court to reverse the proceedings of the respondents is limited to those cases where there is no evidence to support the conclusion arrived at, or if there is some evidence, the preponderance of proof is so great against such conclusion that if it were the verdict of a jury, such verdict would be set aside as against evidence.” Peo., ex rel. Kelly v. Charles F. MacLean, decided General Term Supreme Court, March 14, 1891; Peo., ex rel. Masterson, 110 N. Y., 494; Peo., ex rel. Flanagan v. the Board of Police, 93 Ib., 110; Peo., ex rel. Foley v. The Police Commissioners, 8 Weekly Digest, 466.
    
      III. The board of police are the statutory judges of the relator, and their findings on the facts, although the testimony was contradictory, is conclusive. The case at bar would not stand the test of a motion for a new trial made upon the ground that the verdict is against the weight of evidence. The witnesses for the respondents did not even contradict each other. The relator’s own witness said he gave Boekell whiskey. “ The éffect was to create a question of fact for the decision of the commissioners, against which there certainly was no preponderance in favor of the relator; and under the rule sanctioned, not only by the statute, but also by the authorities, their decision is required to be sustained.” Peo., ex rel. Rafferty v. French, 13 Weekly Supe., 337 and case cited. “ The power of this court over the case now presented, is no greater than it has over the verdict of a jury rendered on the trial of an action (subsections 4 and 5, section 2140 (Code of Civil Procedure). “ Upon this evidence the verdict of a jury would be conclusive. The court could not set it aside, and it can therefore afford this relator no assistance.” Peo., ex rel. Winchell v. MacLean, et al., 13 Weekly Supe., 342 and case cited. “ The most advantageous views of the relator that can be taken in this proceeding is that there is a conflict of evidence; but it cannot be said that it is so prepondering as to justify the claim that a palpable error .was committed by the respondents, although it may be that even if the converse view could be indulged in, it would not result to the relator’s benefit. The Court of Appeals has substantially settled the rule that the commissioners are statutory judges, and when they find upon conflicting evidence, the evidence is conclusive.” Peo., ex rel. Bradley v. French, 7 N. Y. St. Rep., 253; Peo., ex rel. McAleer v. French, 119 N. Y., 502; Peo., ex rel. Hogan v. French, 119 Ib., 493; Peo., ex rel. Masterson v. French, 110 Ib., 494; Peo., ex rel. Hart v. The Fire Commissioners, 82 Ib., 358; Peo., ex 
      
      rel. Kent v. Fire Commissioners, 100 Ib., 82; Peo., ex rel. Irving, 25 N. Y. St. Rep., 40. “ The court is not to inquire into the merits of the decision or the justness of the penalty imposed ; it can only allow power enough to see that some violation of duty or negligence was charged against the relator, and evidence given tending ,to establish its existence.” Peo., ex rel. Walter J. Bradley v. French, supra; Peo., ex rel. Gibson v. French, 16 N. Y. St. Rep., 1012. “ The judgment of the commissioners, unless there is an entire absence of evidence to sustain it, ought not to be disturbed.” Peo., ex rel. Hart v. Fire Commissioners, supra; Peo., ex rel. Bradley v. French, supra.
    
   By the Court.—McAdam, J.

The relator was tried by the police board on charges preferred to said board that the relator was so much under the influence of liquor as to be unfit for duty at 1.33 P. M. January 1, 1891, at the expiration of his tour of patrol duty.

The testimony offered in support of the charges would be sufficient to sustain them, were it not for the explanation offered by the relator, which seems fully sustained by the evidence on his part. The relator went on his post on the day in question at 8 A. M., and his tour ended at 1 p. m. He completed his tour that day in full and arrived at the station house 20 or 25 minutes after 1 o’clock.

The relator was one of the mounted force, and on the day in question, he answered the first call at the station house at 12 o’clock; and at that time his condition was all right. After that an accident happened; the horse slipped and fell, throwing the relator to the ground, in consequence of which his head was injured, making him unconscious for about five minutes. When he recovered sufficiently to appreciate his surroundings, he found two citizens alongside of him, and they gave him whiskey to bring him to. He walked and rode after the accident, and, after completing his tour, returned and reported at the station house. When he arrived there he was able to sit in a chair, and was compelled to sit there for about two hours. There were radiators in the room and it was quite warm. While sitting, a sort of dizzy sensation came over him, caused, as he says, by the “ hit and the accident” and he fell asleep. It appears that the relator has been on the force between four and five years, and an officer of the same precinct for about two years, and during the whole time he was on the force no complaint of intoxication was ever made against him.

The citizens corroborate this story of the relator; it is uncontradicted, seems probable, and we believe it to he true. The explanation takes the sting out of the charge and shows that the conduct complained of was not a breach of discipline, but the result of an accident.

The rule undoubtedly is that the commissioners are statutory judges, and when they find on conflicting evidence their judgment should not be set aside, except in a case where the verdict of a jury would, under like circumstances, call for the exercise of ¿he supervisory power of the court to correct error and injustice. But there is no such conflict in the evidence here, that makes the finding of the commissioners so sacred that it should not be reviewed. The relator had taken liquor, and this combined with the accident which befel him dazed him, and warranted the captain in making the charge of conduct unbecoming an officer. This left it to the commissioners to determine (subject to review by the courts) whether the relator’s excuse was satisfactory or not. The power of the court at general term to review the finding of the commissioners is conceded, while the Court of Appeals generally accepts their finding when approved of by the general term upon certiorari, as conclusive, People v. French, 7 N. Y. State R., 253; Same v. Same, 119 N. Y., 493, 502; Same v. Same, 110 Ib., 494, and kindred cases, and yet that court, in The People v. French, 119 N. Y., 493, reversed an order of the Supreme Court, affirming the action of the commissioners in removing one Hogan from the force. In that case the court discriminates between a voluntary intoxication and the taking of liquor in a sudden emergency, from a commendable motive, and with a reasonable expectation that it will sustain the failing ability to perform duty.” In such a case, the court holds a that there is no breach of discipline, and no conduct unbecoming an officer ” (page 498)'. If, as is sworn to by the relator and the two citizens, the ground was a slippy,” his horse slipped and he was thrown to the ground and rendered unconscious, and the citizens to revive him gave him whiskey, which by the subsequent heat of the radiators in the station house put the relator in a doze, it cannot be truthfully said that the relator was guilty of voluntary intoxication, or of conduct unbecoming an officer. The commissioners should not have disregarded the evidence of the two citizens. They were disinterested and unimpeached, not even contradicted, and their story was highly probable. Lomer v. Meeker, 25 N. Y., 361; Kavanagh v. Wilson, 70 N. Y., 179. The commissioners while exercising quasi-judicial functions, must weigh the testimony offered before them according to legal rules, and give effect to explanations which tend to mitigate or explain away the offence charged. For the failure of the commissioners to give proper effect to the explanation offered, their adjudication must be reversed and the relator restored.

Freedman, P. J., and Gildersleeve, J., concurred,  