
    SUPREME COURT.
    The People ex rel. Stephen L. Cook agt. The Board of Metropolitan Police.
    The relator having been convicted, by the board of metropolitan police, of being absent from duty for a certain prescribed period, and at the time of such conviction the law made the offence punishable only in case of absence from duty without lenve :
    
      Held, that the return to the common law certiorari bringing up such conviction, not showing that the absence was without leave, the relator was convicted of no offence.
    
    Besides, it was wholly inconsistent to find the relator guilty of neglect of duty for absence during the time the board had unlawfully dismissed him from service.
    
    
      New York General Term,
    
    
      December, 1863.
    Sutherland, Leonard and Barnard, Justices.
    
    Appeal from judgment at special term (reported 25 How. Pr. R. 79). This is a common law certiorari to review the judgment of the board of police, deducting by fine the pay of the relator, as a member of the police force, from the 26th day of October, 1861, to the 8th day of January, 1863. It appeared by the return to the certiorari, that on the 19th day of January, 1863, the then superintendent of police, John A. Kennedy, preferred to the board charges against said Cook, of “ neglect of duty,” and specified, as the ground thereof, that said “ Cook was absent from duty and from the station-house of the ninth precinct, from October 26, 1861, to the 8th day of January, 1863.” It also appeared by the return, that the relator had been removed from the police force, by the judgment of the board, in- the fall of 1861, just prior to the alleged absence; that the judgment of removal continued in force till just before the preferring of the present charge, when the order of removal was reversed by this court, and Cook returned to his prior position on the force.
    A. J. Vanderpoel, for the board, appellants.
    
    Wm. Henry Arnoux, for the relator, respondent.
    
   By the court, Barnard, Justice.

The relator was charged with neglect of duty by reason of being absent from duty from October 26, 1861, to 8th January, 1863.

Of this charge he was convicted. The effect of this conviction is, that he was convicted simply of being absent from duty for the period mentioned.

This conviction was for a matter which at the time of its rendition constituted no offence.

As the rules stood at the time of this conviction, the conviction could only be for absence from duty without leave. The wording of the by-law clearly makes the offence to which the penalty is attached absence without leave. So far as the proof is concerned, it perhaps would be incumbent on the accused, after the prosecution had, shown absence from duty, to show that he had leave, otherwise it would be presumed that he had not leave. However this may be, it is absolutely necessary that the record should show a conviction for some offence punishable by the court which, or the magistrate who, convicts. The record in this case, for the reasons above stated, does not show any such conviction.

Conceding that, by the law as it stood prior to its amendment, absence with or without leave constituted an offence, to which a penalty was attached, yet that law having been amended so that absence with leave constituted no offence, no conviction could be had after such amendment for an absence with leave.

It is not necessary now to inquire as to how far a common law certiorari brings up the evidence, and as to how far the court will, on such certiorari, examine into the merits ; but it may be observed that, from the opinion of Judge Edmonds in Morewood agt. Hollister (6 N. Y. 327), and the cases cited by him, it would seem that to a writ of certiorari in cases of summary conviction the whole evidence which applies to the charge must be set out, that the court may judge whether sufficient proof appears on the face of it to sustain every material allegation and to justify adjudication.

I feel constrained, however, to remark, that the judge at special term was not too strong in his language when he characterized the action of the board of police commissioners in this case as a proceeding which shocks one’s sense of justice. I would merely amend his exclamation by saying that the proceeding is such as to shock every man’s sense of justice, excepting only that of the men then composing the board.

Leonard, J.

It is wholly inconsistent to find an officer guilty of neglect of duty for absence during the time he was unlawfully dismissed from service. The officer was not guilty of any offence for being absent at such time. The judgment ought to be affirmed, with costs.  