
    People ex rel. Adam A. Cross, App’lt, v. James J. Martin et al., as Police Commissioners, etc., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 15, 1895.)
    
    1. Municipal corporation—Police—Proof.
    The decision of the police commissioners discharging a policeman, which is supported only by the uncorroborated and self-contradictory testimony of the keeper of a house of prostitution, will be reversed.
    2. Witnesses—Cross-examination.
    Where a witness has testified as to her occupation at the time of the occurrences narrated by her, a refusal to allow her to be cross-examined as to her present whereabouts and occupation cannot be justified on the ground that she has reformed and should be protected from exposure as to her past life.
    
      3. Evidence—Judicial notice.
    The court may take judicial notice of the fact that persons, who are engaged in business and cannot read and write, have their faculty of memory more acutely educated.
    
      Certiorari to review the action of the board of police commissioners in dismissing the relator from the police force.
    
      Elihu Root, for relator; Francis L. Wellman, for resp’ts.
   Van Brunt, P. J.

On the 13th day of August, 1894, certain charges, forty-six in number, were presented to the respondents against the relator, who was then a captain of the police force of the city of New York. Notice of the preference of said charges, and of the time and place when the same would be publicly examined, was served upon the relator; and thereafter, on the 15th day of August, 1894, and subsequent days, a trial was had, and on the 31st day of August it was by the said police commissioners resolved, declared, ordered, and adjudged that the said charges are true, and that the said Adam A. Gross be, and he hereby is, dismissed from the police force of the police department of the city of NewYork.” It appears upon inspection of the record of the trial that upon charges thirteen to twenty-three, inclusive, and twenty-five to thirty-five inclusive, no evidence was offered, and it would seem that the police commissioners had dismissed such charges ; but in their judgment they find the same to be true, notwithstanding such dismissal. It might be a subject of interesting inquiry, perhaps, to know whether, in the punishment of the relator, the whole of the charges had not been considered, instead of those only in respect to which proof had been offered. The first twelve of the charges relate to the accepting of money for permitting to be kept open a disorderly house at No. 144 - Christie ■ street, kept by one Katie Schubert. The thirteenth charge was founded upon alleged neglect of duty in permitting said house to be kept open. The twenty-fourth charge was founded upon alleged neglect of duty in allowing a similar house to be kept open at No. 28 Bayard street. The thirty-sixth charge was founded on an alleged neglect of duty ip allowing a similar house to be kept open at No. 6 Delancey street. The thirty-seventh to the forty-fourth charges were founded upon the alleged taking of money for permitting a similar house to be kept open at No. 24 Bayard street, by one Rhoda Sanford: The forty-fifth charge was founded upon alleged neglect of duty in permitting said house No. 24 Bayard street to be kept open. And the forty-sixth charge was founded upon on allegation of a complaint having been made by one Hendrickson to the relator of money being taken by a patrolman of the police force named Kelly to influence him in the performance of his duty, and a failure and omission upon the part of the relator to report said dereliction of duty upon the part of said patrolman' to the inspectors of his district, and a failure or omission to take any steps or measures to investigate said dereliction of duty upon the part of the patrolman, or to punish him therefor.

It appears from the evidence in the case that some time in April, 1892, the relator became a captain in command of the eleventh precinct in the city of New York, and remained in such command until some time in February, 1893,—a period of about nine months; and it is claimed to have been" established by proof, produced upon the trial of these charges that during said times he received, as a bribe from said Katie Schubert, the sum of $500, and $50 a month for each of the months while he was in command of the precinct, he, in consideration thereof, agreeing to permit said Katie Schubert to carry on her business of maintaining a house of prostitution. It is also claimed to have been established by the evidence that some time in October, 1892, the said Rhoda Sanford paid the relator $500, and $50 a month thereafter, in order that she might be permitted to carry on her business, which was of a similar character, at the premises No. 24 Bayard street. And it is also claimed that the evidence establishes the charge in respect to dereliction of duty in reference to permitting these houses to exist, and also in respect to the complaint which was made against the patrolman Kelly. There is no evidence that the woman Sanford had anything to do with the relator, Cross. According to her testimony, all her business relations in reference to protection from police interference were had with one Smith, who was the wardman in the precinct. ¡The evidence connecting Smith with the relator is that of Katie Schubert, the keeper of the house of prostitution at No. 144 Christie street; and consequently, if her evidence is of such a character that conviction cannot be predicated upon it, there is no evidence whatever against the relator in respect to the premises No. 24 Bayard street, except that of a general character in preference to the business being permitted to be carried on. The witnesses to the bribery in reference to No. 144 Christie street were the proprietress of the establishment, claimed by the prosecution to be a very respectable married woman, and one Alice Ryder, another respectable married woman, who for a period of eighteen months was an inmate of the premises No. 144 Christie street, and furnished' part of the material with which business in that house was carried on. As has already been suggested, the claim was made before the police commissioners that, whatever idiosyncrasies, these ladies had indulged in for the period under consideration, they had since that, time led creditable and respectable lives, both the ladies in question having married and settled down. When the counsel fbr the defense endeavored to get some information from these witnesses in regard to their present surroundings, their present location, their names and history, he was prevented from obtaining any-information whatever upon this subject; and hence it was impossible for him to make any investigation in respect to the verity of these pretensions to virtue upon the part of these women, who acknowledged that they had been engaged in this immoral business. Their evidence was placed before the tribunal, in which the relator was being tried, as that of credible and respectable witnesses ; the board was asked to believe such evidence because they were credible and respectable; and the relator was given no opportunity, as already suggested, to identify the witnesses, so as to be able to ascertain to what extent these pretensions were true. It is perfectly clear that in a trial before a civil court no judgment could possibly stand which was founded upon evidence of witnesses in respect to whose identity such rulings had been made.

It is, however, to be considered that, in proceedings before the board of police, entirely strict and accurate rulings in regard to questions of evidence are not always to be expected; and, in determining the question as to whether a conviction should be sustained or not, the record generally should be examined, and the appellate court should determine upon such examination whether it discloses reasonable grounds for the conclusion arrived at, and one which has not been the result of the erroneous rulings in respect to the admission or exclusion of evidence. Therefore, if, upon an examination of this record, notwithstanding this extraordinary position in regard to the protection of witnesses from the ordinary investigation to which such witnesses are subjected in order that their credibility may be properly weighed, we should be satisfied that there was sufficient evidence to justify the conclusion at which the board arrived, we should not disturb the same.

When we come to examine the evidence of Katie Schubert, the principal witness for the prosecution, we are confronted with the fact that there is hardly a circumstance alleged to have surrounded the taking of this money in respect to which this witness Schubert has not given two diametrically opposite versions, or has not been contradicted pointedly by incontrovertible evidence. It would be impossible, within the limits of an ordinary opinion, to go through the testimony of this witness, and refer to the numberless contradictions which the record discloses therein. We will therefore advert to only a few of the more prominent examples, which will be sufficient, it seems to us, to show that the witness was utterly unreliable and unworthy of belief.

Upon her examination when first examined on the part of the prosecution, the witness testified that she was a respectable married woman; that she lived at one time on Christie street, where she had lady boarders, and the house was kept as a house of prostitution, and that, while she was in that business, Captain Cross was one of the captains of the precinct, and was there for about six months, and that was in the year 1892 ; she did not remember whether it was the latter part or the first part, but it was after McLaughlin left, and before Devery came; that she gave Captain Cross some money in the spring; and that Cross called on her with his wardman, Smith. The witness was then asked the question:

“Q. How often did you see Captain Cross ? [Her answer was:] He was only once at my house. Q. How often did you see him after that, at any place, in the street, or where ? A. I have never seen him to speak to. I have often seen him pass in the street, but not to speak to.”

The witness then pointed out Captain Cross, and was asked:

“Q. The first time that you saw him, was it in your house ? A, Yes, sir. Q. Smith was with him? A. Yes, sir. Q. Evening or daytime? A. Evening. Q. State the conversations that you bad. A. He just came in, and Officer Smith introduced him as our new captain, and that I had to give up $500. Q. Just state what was said. A. There wasn’t much of a coversation. Officer Smith just introduced the captain, and told me: ‘This is the captain, and I will be his man, and you have got to give up $500, and then I will come every month after the $50.’ Q. Did he say, if you did not do that, what would take place? A. Then I didn’t have the money, and we set a date, and I do not know how many days after it was that I got the money, and Captain Cross called for it again ; and, as I handed him the money, he gave me a very sarcastic laugh, and asked me did I get small bills on purpose, and couldn’t I get it in big bills, that it made such á big roll. I said that I was glad enough to get that; I had to borrow it.”

Thus, within five minutes the witness contradicted herself in regard to her seeing the relator, swearing, first, that he was only once at her house, and immediately thereafter swearing to two' interviews in her house.

In another part of her testimony the witness testified as follows :

“Q. Then Captain Cross was in your place more than once? A. He was only there when he took the money. Q. Only there when he took the money ? A. That is all. Q. Was that the occasion when this officer introduced him, as you have testified? A. No; he introduced him about a week before, because I didn’t have the money at the same time as he introduced hitn. Q. Where did he introduce him ? A. In my front parlor. Q. Then Captain Cross was in your place twice? A. Well, twice. Q. Once before when you paid him the money ? A. Once when he was introduced, and next time he got the money. Q. What time of day was it? A. Half past eight in the evening.”

It is to be observed that she testified that this money was paid in the spring, and that the captain had been in the precinct but a few days.' She further testified that she paid Smith $50 a month thereafter. The witness was then asked ;

“Did Captain Cross raid you at all? A. Yes, sir; once. Q. When ? A. Once when he first came to the precinct. Q. Before you had given him any money? A. Yes, sir. Q. How long before ? A. It was about three weeks. Q. About three weeks ? A. About three weeks before I gave him the money. Q. And were you taken to the station house? A. Taken to the station house. Q. Was he then captain? A. Yes. Q. And what was done to you? Were you fined? A. Yes, sir. Q. How much ? A. I was fined $50. Q. How soon after you paid your fine did you see the captain ? A. I have seen him in a few days after. Q. A few days after you paid your fine, then the captain and Smith called? Is that it? A. Yes. Q. Did you have any talk about the raid at all? A. Ho; I didn’t ask anything; didn’t have any talk about it.”

There is no dispute about the fact that on the 30th of May,, about five weeks after coming to the precinct, Capt. Cross did raid the premises of the witness.

As an instance of the manner in which this witness testified, it. may be proper to call attention to tfie following bit of testimony ;

“Q. When did you first move to 144 Christie street ? A. 1892. Q. What time in 1892 ? A. I moved there in July. Q. In July, 1892 ? A. Yes. Q. You moved to 144 Christie-street ? A. Well, I had moved there before that. Q. Answer my question. A. I had moved before. I had been in the house longer than that, but I didn’t keep it in that style ; didn’t keep no-ladies. Q. You moved to the house 144 Christie street in July, 1892. That is true, isn’t it ? A. Yes, sir. Q. And from that time on you carried on business as keeper of a house of prostitution? A. Yes. Q. Until when ? A. Until six months ago. Q. Until six months ago ? A. Yes. Q. That was about February, 1894? A. Yes. Q. Then, did you leave 144 Christie street? A. Yes, sir. Q. Where did you go? A. Moved away. Q. Where to? A. I refuse to tell.”

Subsequently the witness swore that she lived at 144 Christie-street in January, 1889, and lived there continuously until she left there, about six months ago,—a period of four and a half or five years; that it was first kept as a gentlemen’s boarding house, and then was turned into a ladies’ boarding house, about two and. a half years before the trial. But although the witness was keeping a gentlemen’s boarding house in 1889, according to her testimony, it appears that her place was raided by the Society for the-Prevention of Cruelty to Children, and the witness indicted. In another place in her testimony the witness says that this raid took place about two and a half years before her examination, when she first turned her house into a house of prostitution. Another instance of the unreliable character of the evidence of this witness is shown by her continual contradiction as to whether she paid this money to the captain before or after she was raided by him. The witness having, testified thát the money was paid after she-was raided and after her trial, the raid occurring on the 30th of May, 1892, and the trial on'the 21st of June, she testified in one place that the money was paid in May, 1892, and in several other-places that the payment was made before she was “pulled.”' And it would seem in connection with this matter that the witness was perfectly willing to swear either way upon this subject, because we find this testimony near the close of her examination i

“By the counsel for the prosecution : Q. Captain Cross, I understood you to say, raided you ? A. Yes. Q. And then sent, for you to come to him, and told you, if you paid, it would be all right ? A. Yes. Q. Mow, how long after he had raided you or ‘pulled’ you was it that he sent for you, and told you, if you paid your money, it would be all right? A. I don’t exactly remember, but it was after my trial was over. Q. Then, after your trial was over, it was that the captain sent for you, and told you, if you paid, it would be all right? A. Yes. Q. How soon after he came into the precinct did he raid you ? A. I 'think he was-only there about two or three weeks. I don’t exactly remember, but that is as good as I can remember. Q. And two or three-weeks after he raided you ? A. Yes. Q. And after your trial he sent for you, and told you, if you paid your money, it would be all right ? A. Yes. Q. And you fixed it up by payment, and it was all right ? A. Ybs.
“Recross-examination by counsel for the defendant: Q. Didn’t you testify, in answer to my question, that you paid this $500 before Captain Cross raided you ? Do you understand me ? A. I understand you. Q. Please answer the question. A. "I don’t exactly remember if I gave him the $500 before, or after I was raided. I think before I was raided. Q. Didn’t you testify on the cross-examination, in answer to my question, that you paid Captain Cross $500 at yóur house before he raided you ? A. And then I was raided. Then he sent for me, and told me to keep a little quiet until my trial was over, and, when my trial was over, come to see him, and he would fix me all right. Q. But you had paid Captain Cross the money before you were raided by him ? A. Yes. Q. There is no mistake about that ? A. No.”

It seems to be thus apparent that within a very few moments the witness flatly contradicted herself in respect to the time of the payment of this money, and the circumstances attending the payment. It was urged upon the part of the counsel for the prosecution that the witness might very well make a mistake in' reference to the time at which this money was paid to the police captain, in that there were three captains there within thirteen or fourteen months ; and she claimed to have paid $1,500 to those three captains,—to McLaughlin $500, to Cross $500, and then to Devery 500 ; and, in speaking of the payment of the $500, she might have referred to the $500 first paid to McLaughlin as paid before the raid. But the difficulty with this explanation is .that it hardly harmonizes with the testimony of the witness. It is true that she testified that she paid $500 to McLaughlin before Cross came; but she also testified, in equally positive language, that Cross was the first captain that she had dealings with.

The testimony of the witness in regard to the manner in which she got the $500, and her bank accounts, is of an equally interesting character. During the course of her cross-examination, she was asked, referring to. the time when she furnished the house in Christie street:

“Q. Did you have any' money in bank? A. No. Q. Did you ever have money in bank? A. Yes. Q. What bank? A. Down town. Q. Where down town ? A. In Park Row. Q. There is Simpson’s and two or three other places down there. What bank have you reference to? A. I haven’t got'it now any more. Q. You kept some money in a bank in Park Row ? A. Yes. Q. How long did you keep the money there ? A. Two or three months. Q. Do you know the name of the bank ? A. No, I don’t, for I ain’t got it no more, and I forget the name of it, too. Q. When did you draw out your last money? A. About two years ago. Q. You don’t remember the name of the bank? A. No. Q. Do you remember how much you finally drew out? A. I don’t remember that. Q. Was it $500 or $1,000? A. I don't remember. . Q. Was it $5,000? A. No, sir; never got as rich as all that. Q. Haven't you any idea how much money you drew out of the bank ? A. I don’t remember exactly; about $500 or $600. Q. And that you drew out, you say, when ? A. About two years ago. Q. What did you do with the money ? A. Spent it.”

The witness further testified that she had borrowed the money which she paid to Captain Cross from Jacob Wolf and Isidore Kraushauer. Subsequently she was recalled, and was asked by the prosecution:

“ Q. Did you have any bank account at all when you were keeping 144 Christie street? A. I did. Q. Where was it? A. I had some money once in Canal street. Q. At the Canal Street Bank ? Mow, other than that, did you have any bank account at all? A. Mo.”

Upon examination by the counsel for the relator, the witness was asked:

“ Q. You don’t remember having kept an account in 1892? A. I kept it, but I don’t exactly remember when it was. Q. Was this the same bank that you testified to having kept an account in on my cross-examination ? A. Mo, sir; that is a bank I kept a bank account in, a small bank account, before I kept that house; and I did not think it was necessary for me to mention it. Q. You did keep another bank account ? A. I did. Q. And it was a small bank account, which you started before you kept that house? A. Yes, sir. Q. About how much? What do you call a small bank account ? A. I don’t know. I don’t remember. Q. $250 ? A. I don’t know.”

The witness was further asked:

“ Q. You did not have that account in 1892? A. I don’t remember when I had it. Q. You don’t remember when you had it? A. Mo. Q. And you don’t know how much you had in 1892 ? A. Mo.”

The witness was then asked:

“ Q. Did you keep an account in the Citizens’ Bank ? A. Mo. Q. Sure about that? A. I don’t know anything about it? Q. Did you keep an account in the Citizens’ Bank in 1892 ? (Counsel for prosecution states, ‘On Canal street.’) A. Mot that I know of. Q. Did you keep an account at the Bowery Savings Bank in 1892, or at any time ? A. I did. Q. How much did you have there in 1892 ? Do you remember ? A. I don’t know. Q. Was it more than $500? A. I don’t remember. Q. Was it $5,000 ? A. Mo ; I don’t remember of having $5,000. Q. About how much was it? A. I could not tell you. Q. Did you draw any money out of the Bowery Savings Bank in 1892? A. I drawed it just to pay back these people from whom I borrowed it.”

The witness then further testified to having kept an account in the Bowery Savings Bank, as well as in the Citizens’ Bank and the Canal Street Bank. But in this connection it may be proper to state that probably the witness confused the Bowery Savings Bank, the Citizens’ Bank, and the Canal Street Bank, because the name of the bank was the Citizens’, and its location was at the corner of the Bowery and Canal street. The witness was then asked:

“ Q. Don’t you know 'that in the three banks in which you kept an account in 1892, that there was to your credit over $5,000 ? A. No, sir; I did not exactly know. Q. Or about $5,000 ? A. Maybe it was. Q. What did you mean by telling this board, on your cross-examination, that you did once keep a bank -account in a bank on Park Row, but that, since you closed your account there, you have kept no bank account anywhere. What did you mean by that ? A. Because I have had that bank account pretty near all— It was when my husband was alive, and he kept them, and I know nothing about it. They were left to me when my husband died, and I did not think it was necessary to mention them. Q. Were not these deposits with the banks I have mentioned kept in the name of Kate Wendt (the name of the witness’ first husband being Wendt)? A. Certainly. Q. And didn’t you open those accounts in all the banks I have mentioned? A. No, sir; I had them signed over to me after my husband died. Q. You are sure about, that? A. Yes, sir. Q. And you cannot be mistaken about that?' A. No ; not at all. Q. Can you now tell us how much money you drew from any one of those three banks, or all three of those banks, in the year 1892? A. No, sir; I could not tell you. I don’t remember. Q. Did you draw any money out of the Citizens1' Savings Bank in the year 1892 ? A. No ; I have drawed it every time I wanted money out of the Canal Street Bank. Q. Every time you wanted money you drew that from the Canal Street-Bank? A. Yes, sir. Q. Can you tell how much money you had on deposit to your credit in the Canal Street Bank at the time you say you gave $500 to Captain Cross? A. I have had $3,000. Q. You had $3,000 ? -A. Yes, sir. Q. Then at the time you say ■you paid Captain Cross $500, you had to your credit in the Canal Street Bank $3,000 ? A. Yes, sir; I had it. Q. Now, having that large amount of money to your credit in the savings bank, why did you borrow $1,100 from Wolf and Kraushauer? Why didn’t you draw it from the bank ? A. Because it was around the time that there was some trouble in the bank, and I could not. get any money. Q. There was some trouble with the bank in 1892, and that is why you could not get any money ? A. From what I can remember, I went to get the money and could not. * * * Q. You never personally knew anything.about trouble with that bank ? A. I knew nothing; only I went there, and there was a crowd of people, and they said I could not get in and get my money.”

Subsequently the witness stated that she had handed over her bank book' to somebody who went bail for her, and that he had the bank book, and she could not draw the money ; and she further testified that after she had been released, and paid her fine, and discharged, she borrowed the money to pay Capt. Cross..

The character of this evidence shows that the witness did nob seem to think it necessary to testify to any fact which existed because she was questioned in respect thereto; and it is apparent that she had testified knowingly falsely in regard to the existence of this account in the Citizens’ Bank ; and it is also equally clear that she testified knowingly falsely as.to the reason she gave for not drawing the money from the bank. It appears that in 1890 there had been a run upon the Citizens’ Bank, but subsequent to that time no trouble; and that, instead of the witness going there, she testifies, in another place, that she did not go, and could not get her money, because her bail had her bank book as security, and then further testifies that this money was borrowed and paid over weeks after she had been tried and discharged. It appears upon an examination of this bank account in the Citizens’ Savings Bank that she had never drawn a dollar at the time she said she had drawn the money for the purpose of paying back the money which she had borrowed. It further appears from the testimony of the clerk of the bank that her testimony as to the account ever being in the name of her husband was absolutely false; that it was opened by her in March, 1887; that on the 1st of July, 1893, she had $3,210 to her credit; and that from the 10 th of August, 1891, she liad not drawn a dollar from that account. It does not seem necessary to multiply instances of the absolute unreliability of this witness. It was attempted to excuse her manifest prevarications and remarkable lapses of memory by the assertion that she could not read and write, and that, therefore, her mistakes in regard to her financial affairs and her bank account, and the times of the happening of these various transactions, arose from the fact that she had no means of refreshing her memory by any memorandum or writing which had been made.

It has been held by the court of appeals in the case of Frace v. Railroad Co., 143 N. Y. 182; 62 St. Rep. 166, which was an action to recover damages for the destruction of plaintiff’s property by a fire alleged to have been kindled by sparks which escaped from an engine passing on defendant’s road, that the court may take judicial notice of the fact that diamond stack and straight stack spark arresters are in very general use upon the railroads of the country, and that they are both well known systems for arresting sparks, while no system that has yet been invented can wholly prevent the emission of live sparks from an engine under certain circumstances. And we think that we may equally take judicial notice of the fact that persons who are engaged in business who cannot read and write have their faculty of memory more acutely educated, for the reason that they are compelled to depend upon their memory, and cannot rely upon written memoranda. The fact that this woman could not read or write would, according to common experience, tend to create in her a more accurate and retentive memory, because it would be upon that faculty that she must rely in the conduct of her affairs. Instead, therefore, of her incapacity to read aud write accounting for her loss of memory, it seems to make it the more remarkable. It is evident, upon "a consideration of the whole of her testimony, that she was willfully forgetful, and had not the slightest regard for the truthfulness of her testimony.

But it is claimed that the evidence of the witness Schubert was corroborated by that of the witness Alice Ryder, who, as we have seen, was also one of the virtuous inmates of this establishment. It was claimed that this woman had seen Capt. Cross upon one of the visits which he is alleged to have made to this house, No. 144 Christie street. The witness was asked : “ Q. Did you ever see .Captain Cross? A. I never saw him. I don’t know that I saw him.” And then, after having testified to having been an inmate of that house for eighteen months, she testified to the counting out of $500 in bills for Mrs. Schubert, and giving them to her; and that on the same evening two gentlemen called, one of whom she described as being dark complexion, rather stout, very stout, tall, and with a dark moustache. She stated that she did not get a good look at him ; she just had a passing glance, as she was going from the back parlor to the kitchen, and as Mrs. Schubert was taking them into the front parlor. She also testified that she only saw this man that one evening, and then didn't get a good look at him. She was asked this question : “ Q. Look around, and see if you can pick him out. A. This is the one that seems to me (placing her hand on Captain Cross) he looks very much like him. Of course, I did n’t see him full face, but only side face.” The witness subsequently testified thatshe nevérsaw this man before or after that night. It appeared that she had been arrested, with the other girls in the house, at the time of the raid by, Capt. Cross, and that he was at the desk, and their names, etc., were taken down in his presence. She further testified to having, at Mrs. Schubert’s request, written on .certain envelopes the words “ From Mrs. Schubert,” which envelopes Mrs. Schubert testified she had put money in, and left at the station house for the captain. This was all the corroboration that there was of the testimony of Mrs. Schubert. It seems to us that it was wholly insufficient. It amounted to no corroboration at all, because, on the question of identity, she must have testified falsely, as she saw the captain at the station house, and was undoubtedly familiar with his presence.

It further appears, as has already been stated, that the relator was prevented from ascertaining as to whether this girl was still carrying on her business, or whether her statement that she was a respectable woman was true. In fact, all her testimony could be entirely correct (with the exception of the question of identification, which evidence does not seem to be very reliable) without its bearing at all upon the question of the guilt of the relator upon the charges preferred. An examination of this testimony necessarily leads to the conclusion that no man should be held guilty of the crime of bribery, and forever disgraced, upon such evidence.

It is undoubtedly true that much of the evidence upon which we must rely, if crime is to be punished, comes from polluted sources. Crime is not committed ordinarily with respectable and reputable witnesses looking on, who can testify to the facts; but it has its birth largely in secret, and among the disreputable; and the proof of its commission must be established, if at all, by proof taken from this class of the community. These facts should be no reason for allowing crime to go unpunished. It necessitates,, however, a closer examination of the evidence, and some corroboration of the witnesses, either from the nature of their testimony given, or by the testimony of other witnesses. If the story of such a witness is of such a character, and so consistent in its details, and harmonizes so well with surrounding circumstances, as to carry conviction, even where there is no corroborating testimony, it may afford satisfactory proof of guilt; but, where such evidence is not consistent, abounds in contradictions, and shows a disregard of the truth, clearly it cannot form the basis of a judgment establishing crime.

The evidence of Mrs. Schubert and Alice Ryder, as we have seen, shows certainly considerable recklessness of assertion, and lapses of memory which cannot have had an honest origin. As has been already stated, the claim was and is made by the prosecution that these, women were respectable women, and that the weight due to good repute should be given to their testimony; but the relator was refused the right to test, by the methods well recognized in the law, these claims upon the part of the prosecution. The identity and location of these witnesses was studiously concealed ; and the relator was refused the right to examine them as to their present whereabouts and occupation. It may well be, had the ordinary opportunity of cross-examination been offered, that the relator might have been able to have shown by their neighbors that this claim of respectability was all a sham and delusion. The attempt to justify this ruling upon the plea that it was to protect these witnesses from exposure as to their past life, they having reformed, cannot prevail, because, having testified voluntarily to their disgrace (we say voluntarily, because they could have shielded themselves under their privileged claims to have reformed), the relator had the right to test the truth of the claim of reformation. Under such circumstances, in order that it may be said that the relator has suffered no harm because of this ruling, the evidence of guilt should be of a very satisfactory character, instead of being of the unreliable character exhibited in the case at bar. The same ruling was made in the case of Rhoda Sanford, who did not claim that she had reformed; and the relator was even in her case deprived of the benefit of showing her surroundings, and the influences under which she was testifying.

As has already been suggested, the charge, so far as the taking of money from Rhóda Sanford is concerned, depends upon the testimony of Mrs. Schubert, connecting the captain with the ward-man Smith. Mrs. Sanford swears that she never paid any money to the captain; that all her transactions were with the wardman. It appearing that the woman Schubert is entirely unworthy of belief, there is nothing to connect the relator with the charge of bribery in regard to the house of Mrs. Sanford, No. 24 Bayard street.

As to the charge of failing to report these disorderly houses, there was a conflict of testimony, and different conclusions perhaps might be drawn therefrom. But, as it seems to be probable that the charges for which the relator was dismissed were as to the receiving of these alleged bribes, the mere fact that a finding of neglect of duty might be sustained upon the evidence should not prevent a reversal of the judgment of the police commissioners convicting the relator of an infamous crime.

It is claimed upon the part of the relator that the reason the charge against Kelly was not pressed was because he had been retired from the police force a few days before the complaint of Hendrickson. It may be a question as to whether this was a sufficient excuse for entire neglect to investigate the matter; but, as already suggested, it does not appear that the sentence was pronounced because of a conviction upon this charge.

Upon the whole case, therefore, we think that the judgment of the police commissioners should be reversed, and the relator reinstated, with costs.

All concur.  