
    The People of the State of New York ex rel. Charles J. Shields, Relator, v. James J. Martin and Others, Police Commissioners, etc., Respondents.
    Judgment annulled, with fifty dollars costs and disbursements and the relator reinstated. —
   Barrett, J.:

The charge against the relator was that he “ became engaged in a fracas in .the lager bier saloon of Casper Iba, No. 255 Bowery, and while so engaged drew his pistol andpointed it at several persons present, in a threatening and very dangerous manner.” The respondents do not rely upon the first branch of the charge. Indeed, they could not well do so, as there was not a particle of evidence connecting the relator with any criminal feature of this fracas. On the contrary, the patrolman, Croughan, who was called by the prosecution, testified that the person with whom this fracas is said to have occurred (one Henry Iba) admitted under oath in the Police Court that it was he, Iba, who raised the disturbance that started the row. It is a significant fact that this Henry Iba was not called as a witness before the respondents. Thus the relator's story with regard to the occurrence, corroborated as it is by numerous witnesses, was entirely uncontradicted. It was substantially the only version of the fracas which the respondents had before them. The case as to the use of the revolver, though not quite so barren of testimony, is exceedingly weak. There is, in fact, no substantial evidence that the relator had or used a revolver upon the occasion in question. A single witness, Casper Iba, and he came upon the scene when the fracas was on the wane, does testify that he “grabbed” the revolver out of the relator’s hands. But he did not adhere to this testimony. Upon cross-examination he said that he was not positive that he took the revolver from Shields’ hands; that at the time this revolver was “ flourishing ” there was great excitement and a “great number of ands were up in the air,” and that somehow he got the revolver in his hand. He was then asked this question, and gave the answer, which follows: “ Q. You could not swear positively it was from Officer Shields’ hand that you took that revolver ? A. No.” Further on he said “I ihink it was Mr. Shields had the revolver. * * * I think,” he added, “almost sure; Iwouldnottioearto ii.” This is all the testimony there was in support of the charge. The relator, on the other hand, testified that he had no revolver at the time of the occurrence; that his revolver was then locked up in a closet at the station house, and that, when accused, he took out his keys and offered them to the sergeant, requesting the latter to open the closet and see for himself that the pistol was there. At the close of the case the counsel for the prosecution conceded that the relator’s revolver toas in the station house. It also appeared that the revolver which Cas-Ser Iba seized and brought to the station ouse was not the kind of pistol which police officers usually carry. There is a regulation revolver of the calibre 38. The pistol which was produced was of the calibre 32. Then, too, the relator was corroborated by the testimony of many witnesses. Thus we have a case almost barren of testimony on the part of the prosecution, met with overwhelming evidence on the part of the defense, and surrounded by circumstances which place the probabilities clearly on the relator’s side of the scale. While reaffirming all that was said in People ex rel. Lang v. Martin (5 App. Div. 217), we cannot possibly sustain the present conviction. It is hopelessly unsupported by the evidence. The judgment under review must, therefore, be annulled, with fifty dollars costs and disbursements, and the relator reinstated. Van Brunt, P. u\, Rumsey, O’Bien and Ingraham, JJ., concurred.  