
    The People of the State of New York ex rel. John W. Cunningham, Relator, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Respondent.
    Second Department,
    November 19, 1909.
    Municipal corporation — removal of police officer, city of New York — . constitutional law — former acquittal on charge of bribery — same not binding on police commissioner —facts warranting dismissal.
    Although a police officer in the city of New York has been acquitted upon the trial of an indictment for bribery in releasing a person guilty of a violation of the Liquor Tax Law on the payment of money, he may be tried by the police commissioner for the same act and dismissed for neglect of duty or conduct unbecoming an officer.
    The former acquittal is not conclusive upon the police commissioner so as to support a claim that the officer is twice put in jeopardy for the same offense. To support such claim the former acquittal or conviction must have been “for the same identical act and crime,” while bribery and neglect of duty or conduct unbecoming an officer are not identical.
    On a trial of an officer before the police commissioner for neglect of duty and conduct unbecoming an officer the rule of reasonable doubt applicable in criminal cases does not obtain.
    Evidence examined, and held, that a determination of the police commissioner removing an officer for neglect of duty and conduct unbecoming an officer should be confirmed.
    Cebtiobabi issued out of the Supreme Court and attested on the 17th day of November, 1906, directed to Theodore A. Bingham, as police commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in removing the relator from the police department of the city of New York.
    
      Jacob Rouss [Louis J. Grant with him on the brief], for the relator.
    
      James D. Bell [Francis K. Pendleton with him on the brief], for the respondent.
   Jenks, J.:

The relator was dismissed the police force upon conviction of neglect of duty and conduct unbecoming an officer. It was charged that when off duty he went on Sunday into a liquor place in the borough of Queens, arrested the keeper of it, took him and his wife two or three city blocks and then returned with them to the place instead of taking them to a station house, and that after such return he demanded and received from the keeper’s wife.$5 under the threat that if the money was not given to him he would take the keeper to the station house and prefer a charge against him.

Before the trial of these charges the relator was tried in the County Court of Queens county and acquitted upon an indictment for bribery resting upon this conduct. By consent the record of that trial was read in evidence before the deputy commissioner who tried these charges, and the point is now made that the same testimony if considered should have been conclusive upon the commissioner of police. There is no requirement of statute to that effect. The learned counsel for the relator calls our attention to section 302 of the charter (Laws of 1901, chap. 466), with the comment that if the relator had been convicted upon the indictment, the judgment would have operated as a dismissal from the police force, and thereupon asks why the con verse of the rule should not obtain. Even if it should, but does not, we cannot make it do so. But section 302 does not provide that such a conviction is ipso facto a dismissal, but merely that the 'police commissioner shall have power in his discretion on conviction by him or by any court or officer of competent jurisdiction to punish the offender in various ways, including dismissal. The point is also made that as the acquittal on the indictment was conclusive on the commissioner, the relator could not be put again in jeopardy for the same charge. But, as I have said, the acquittal was not conclusive. Moreover, I think that the indictment - and the charge before the commissioner are not to be regarded as the same offense within the principle invoked by the relator, but rather in the words of Harlan, J., in Grafton v. United States (206 U. S. 354), “ but only that by one act he has committed two offenses.” That is, the one act if committed could constitute a violation of the criminal law with the prescribed penalty of imprisonment, and also a neglect of duty and conduct unbecoming an officer of. the police force, with the prescribed penalty of reprimand or withholding pay, or suspension or dismissal. In order that the principle of jeopardy apply, it is well settled that The former acquittal or conviction must have been for the same identical act and crime.’ ” (State v. Gustin, 152 Mo. 112, citing authorities.) The relator was not tried upon the same charge which was the subject-matter of the indictment, for the act which was charged as bribery in the indictment was charged as neglect of duty and conduct unbecoming an officer at the trial before the commissioner. It is to be noted that the commissioner did not act upon the record of the criminal trial alone, because a number of witnesses were called and examined before him. Although the relator was entitled to the rule of reasonable doubt in the criminal prosecution, that rule did not obtain in the hearing of the charges now under review. Aside from the questions of jurisdiction, procedure and violations of rules of law, the question before us is whether there was any competent proof of all the facts necessary to be proved in order to authorize the determination, and, if there was such proof, whether there was such a preponderance of proof against the existence of any of those facts that the verdict of a jury affirming such existence in an action in the Supreme Court would be set aside by the court as against the weight of evidence. (Code Civ. Proc. § 2140.) To sustain the charges the keeper of the liquor place and his wife testified positively that the relator came to their place on a Sunday evening about 10 o’clock with another person, demanded and received and paid for sherry wine and beer; then the relator struck the keeper and ordered him to come to the station house, saying, Give me five dollars,” and then, after taking the keeper and his wife four or five blocks, the keeper was told that if he would pay $5 he could go home. The keeper answered that he did not have the money with him, but- that they must go back to his place, which was done, when $5 was obtained from the wife’s brother and was paid to the relator. The wife corroborates her husband. Her brother testified that lie furnished the $5, and that it was paid to the defendant. Two witnesses, who could not identify the persons, testify that they saw the keeper and his wife leave the place on that evening, led by two men, of whom one struck the keeper. The captain of the precinct testifies that the keeper and his wife identified the relator as their oppressor out of a number of his brother officers drawn up in line in the precinct station house.

The defense of the relator was the record of the trial in the County Court, Which shows that he went upon the witness stand to deny everything and that he gave evidence of an alibi. Several witnesses testified to the alibi. McMahon testified that about 10 :10 o’clock on Sunday evening, January 7th, he saw the keeper and his wife and two men, but that neither of the men was the relator. Flynn testified that he remembered Sunday, the 7th day of January, and that he saw the relator about 3 o’clock p. m. at the witness’ house, 540 West 51st street, in Manhattan, where he remained until 9 or 9 :30 p. m. Giles testified that he saw the relator that night on the 10:20 boat on the 34th street ferry, coming from the borough of Manhattan, that they were in company for a time after they landed. He was sure of the hour because he happened to look at his watch, inasmuch as he must be in his house at 10:30 p. m. or its doors would be locked upon him, but on cross-examination he said he thought it was the 20 minutes past 10 boat, that he looked at his watch, that he ought to remember that he looked at it because he had to see the time when he must be at home. The only other occasion that he remembered looking at his watch was one day when he set it by a school clock. Suss testified that he met the relator on a ferry boat on that Sunday night — to the best of his knowledge a little after 10 p. m. He came off the boat and left the relator at a certain place, that he determined the hour because he went over to the saloon across the street from the ferry house to get drink and he then noticed the time, which was 7 minutes past 10, and thereafter he went into the ferry house; that he took the 10 : 20 boat. Vichard testified that he was in company with Suss on that evening and that he saw the relator on the boat that leaves after 10 o’clock, 10:30 or 10:20, and that he fixed the time because he saw the time by the clock on the ferry house. Wilson testified that he saw the relator on that night in Greenpoint when he got off a Greenpoint car, and that it was then 5 minutes of 11 by a certain clock that he noticed, known as Clark’s clock.

In- my judgment the verdict of a jury in the Supreme Court would not have to be set aside even if the jury believed the testimony of the keeper and his other witnesses that the transaction took place as testified to by those witnesses to the disregard of the testimony for the relator as a defendant. Possibly a jury might have concluded that the witnesses of whom each independently determined an hour when each saw casually the same person by the striking coincidence that each then consulted some timepiece, as the defendant testified he had done, were not credible. Possibly á jury might have concluded that they were mistaken as to the day. Possibly a jury might have concluded that the plaintiff’s witnesses were in error as to the exact hour of a transaction which might have occupied but a few minutes. There is no proof upon the record of such an alibi which, even if credited, made it physically impossible for the defendant to visit this place' on that particular evening and to do there what he is charged to have done.

I recommend that the determination be confirmed.

Woodward, Burr, Rich and Hiller, JJ., concurred.

Determination confirmed, with fifty dollars costs and disbursements.  