
    (25 App. Div. 129.)
    PEOPLE ex rel. WELLS v. HART et al.
    (Supreme Court, Appellate Division, Second Department.
    January 21, 1898.)
    Discharge of Police Officer—Evidence.
    Upon the trial of a police officer before the commissioners, on a charge of disrespect towards his superior officer and conduct unbecoming an officer, consisting, as set forth in the specification, in the alleged use of an opprobrious epithet with reference to his superior, he cannot be convicted on mere proof that he used the opprobrious epithet, unless it is also shown that it was used with reference to the superior.
    Hatch and Cullen, JJ., dissenting.
    Certiorari by the people, on the relation of William E. Wells, against Cornelius A. Hart and Charles W. Alexander, police commissioners of Richmond county, to review a judgment finding relator guilty of disrespect, and dismissing him.
    Reversed.
    Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.
    David Thornton, for relator.
    Sidney P. Rawson, for respondents.
   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 towards his superior officer and conduct unbecoming an officer. There were two specifications. The first alleged that while on duty at New 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, «aid: “No. No jay like you can pound me. If you do, yon 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 relator made use of the language set out in the second specifi•cation, 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 he understood the words to apply to Rim; for, when asked by the relator whether he interpreted the insulting term as applicable to himself, the roundsman responded: “Will not swear to that. Haven’t testified to that fact. Testified to your remarks.” The other witness who heard the words used «aid 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 Ms mind that the conversation might have been directed towards 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, and 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 to anybody else as to the roundsman.

This court is committed to the proposition that the technical formality of a criminal prosecution need not and should not be required in proceedings to discipline police officers. People v. Welles, 18 App. Div. 132, 45 N. Y. Supp. 713. 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 concur, except HATCH and CULLEN, JJ., dissenting.

HATCH, J.

I dissent from the views, of the court as expressed in the opinion of Mr. Justice BAETLETT, for the reason that I do not think it can be affirmed that there was no evidence upon which the commissioners were authorized to find the relator guilty of the offense charged in the second specification. On the contrary, I am of opinion that the evidence fairly sustained the charge contained therein, and that this court should not interfere with such conclusion. It is undisputed—indeed, it was admitted by the relator—that -he made use of an opprobrious epithet; and, while he varied the form in which he claimed to have used it, yet it remained in its objectionable features the same. That the epithet was of a character unbecoming an officer engaged in the discharge of his duty, when applied to his superior officer, is conceded. It became, therefore, the duty of the commissioners to determine whether the language was intended to be applied to the rounds-man, Upon this point I think that the evidence preponderates in favor of the conclusion reached by the commissioners. They were entitled to take into consideration, not only the oral statements, but the attendant circumstances.

It appeared from the testimony of the relator that he had had rsome words with the roundsman before he made u®,e of the epithet. There seems to have been no occasion for the relator to make the remark with reference to any other person, and it followed closely -upon the heels of the charge by the roundsman that the relator was off his post. When the remark was made, the roundsman '■spoke to the relator of its having application to him; and the relator interposed no denial that the language was so intended, and made no protest or excuse that it should not be so considered. The fact that the roundsman upon the trial would not say that the relator meant to apply the language to him does not change the fact that the epithet was made, nor the right of the commis•sioners to find that it was applied to the roundsman, and referred 'to him. The testimony simply shows that the roundsman related dhe circumstances as they, occurred, and in no substantial respect ■did he vary his statement in this regard. It was not for him to say for whom the epithet was intended. That was a fact which the commissioners were to determine. And, if objection had been interposed, the answer would not have been proper, as it would have determined the question which the commissioners were to try, 'and is not within the exceptions rendering such testimony competent. It is quite clear that the charge contained in the first specifi•cation was not considered, for the reason that respecting such charge the relator desired to call other witnesses, and, as this necessitated an adjournment, this charge was disposed of by an acquittal. Upon the second charge all of the evidence which either -party had to give was received and considered. We may think that •the punishment was unnecessarily severe, but with that question we have nothing to do. I cannot resist the conviction that this case "falls within our former decisions, which require us to support the ■determination. People v. Welles, 18 App. Div. 132, 45 N. Y. Supp. 713; People v. Welles, 5 App. Div. 523, 39 N. Y. Supp. 50.

For these reasons I think the determination should be affirmed.

OULLEU, J., concurs.  