
    The People of the State of New York ex rel. William Strauss, Relator, v. Theodore Roosevelt and Others, Composing the Board of Police of the Police Department of the City of New York, Respondents.
    
      Police commissioners of New York — use of the record of a member of the force upon ' his trial—facts reviewed on certioi'ari.
    
    The record of a member of the New York police force cannot be used- in deter- ■ mining the question as to his guilt or innocence of charges which have been preferred against him, but such a record is competent upon the question as to the punishment which should be imposed upon him if he is found guilty of the charges.in question.
    . iSemble, that upon the return to a writ -of certiorari, granted to review the proceedings of the board of police commissioners of the city of New York in dis- • missing a member 'of the police force, the court has power to review the facts and to determine whether the decision of the police commissioners is supported by c, preponderance of proof.
    
      Certiorari issued out of the Supreme Court and attested on the 7th day of December, 1895, directed to Theodore Roosevelt, Avery D. Andrews, Andrew D. Parker and Frederick D. Grant, composing the board of police commissioners of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings which resulted in the dismissal of the relator from the position of captain of the twenty-fifth precinct in the police department of the city of New York.
    The relator, a captain in the police department of the city of New York, was dismissed from the service on November 22, 1895. The charges upon which he was found guilty contained the following specification:
    
      “First. The said Captain Strauss did, on or about the 2d day of September, 1895, authorize and' permit the erasure by Acting Sergeant Hammond, of the same, precinct, of an entry in the station house blotter of said precinct, made as of the date and hour of 6.25 p. m. September 2d, 1895, and the substitution by said Plammond of another .entry in place thereof.
    “ Second. On the 3d day of September, 1895j the said Captain William Strauss, did falsely, and with intent to deceive, report in writing to the chief of police that at 6.30 p. m. on the 2d day of September, 1895, Roundsman John Buckley and six policemen from the reserve were sent to 79th street and 1st avenue, with instructions to enforce the ordinance relative to fireworks, and preserve the peace, and that the said Roundsman Buckley in mistake went as far as 86th street; the fact being otherwise, as the said Captain William Strauss then and there well knew.
    “ Third. The said Captain William Strauss did, on or about the 4th day of September, 1895, with intent to ■ deceive, falsely charge the said Roundsman John .Buckley with ‘Neglect of duty,’ in this, to wit: Roundsman John Buckley was directed by Acting Sergeant Samuel Hammond to go to 1st avenue and 79th street with six patrolmen from the reserve to preserve the peace and prevent fireworks being set oil by the Cherokee Club, who had a parade, at 8 p. m., September 2d, 1895, and instead of going to the place directed, he went to the foot of East 86th street and. when he was informed that the 2'7th precinct police had charge, and that they would escort the above-named club through their precinct, the said roundsman returned with his men to the station house.”
    Further facts are stated in the opinion.
    
      Louis J. Grant, for the relator.
    
      Theodore Gonnoly and Terence Farley, for the respondents.
   Barrett, J.:

Ho error of law in the proceedings under review is urged upon us by the counsel for the relator. He claims simply that • the. respondents reached.an erroneous conclusion in view of the facts proved, and asks us to set aside the decision as contrary to the weight of evidence. (Code of Civ. Proc. § 2140, subd. 5.)

On September 2, 1895, an organization called the Cherokee Club had a parade. The members went from the club house, at Seventy-ninth street and First avenue, to Eighty-sixth street and East river, where they embarked. They were expected to land at the latter spot on the evening of this day, and an order was sent to the relator from the central office to have men present along the route of- the parade, so far as it lay in his precinct (the twenty-fifth) to-prevent the discharge of fireworks. A roundsman named Buckley and six men were sent upon this duty. Instead of going to Seventy-ninth street and First, avenue, which was in the twenty-fifth precinct, they went first to Eighty-sixth street and East river, which is in the twenty-seventh. The relator subsequently charged Buckley with neglect of duty in going to the wrong place. The trial resulted in his acquittal. The respondents claim that the pliarge against Buckley vras false; that the relator directed him to go to-Eighty-sixth street, and subsequently attempted to cover up his mistake by procuring an erasure of the entry in the station house blotter, which recorded the mis-direction.

The principal witnesses for the prosecution were Hammond, the acting sergeant, and Buckley, the roundsman. The testimony of these two men is in entire accord. They say that about six p. m. on September second, the.-day of the parade, the relator told Buckley that the Cherokee Club would land at Eighty-sixth street and First avenue about eight p. m., and that he wanted Buckley and six men to go to this place, and escort the procession; that Hammond sent the men on this order, without himself intervening ; that after Buckley and his men started out, the former returned to make sure that there had been nO' mistake in sending him to a place outside of the precinct., and that Hammond told him to obey the relator’s orders. Hammond further says that he made the entry of a direction to go to Eighty-sixth street in the station house blotter about six-thirty p. m. ; and that between eleven-thirty and twelve the same evening the relator told him he had better change it to Seventy-ninth street, since the entry, as it was, might get them into trouble, and Hammond accordingly made the change.

Buckley further states that when he got back with his men to the station house he had a talk with the relator, who declared that he had sent the witness to Seventy-ninth street, which the latter denied. Also that the next morning the relator called him into his office and told him that he was getting up a report to send to Chief Conlin; that he showed him part of it, which contained the statement that witness had been sent to Seventy-ninth street; and that witness told the relator that this was not true, and that if he sent this he would send in a false report.

The relator, in his own defense, denied these charges, and his counsel vehemently assails Hammond’s credibility. That the latter has perjured himself there can be no doubt. On the trial of Buckley he testified in the relator’s behalf, and swore that he himself ordered the men to go to Seventy-ninth street, and made the entry accordingly; that he did not make the erasure under anybody’s direction, but because of his own mistake; and that the correction was made before the men left the station house. On the present trial the witness, after some evasion and attempt to reconcile his different statements, admitted the falsity of his. former testimony, and said that it ivas given to shield the relator, and at his instigation. Another circumstance is also alleged' against him. It is undisputed that the relator, at the time the order to Buckley was given, made out a card on which were written the names of the men who were to go ivith Buckley, and the location to which they were sent. From this card Hammond made the entry in the blotter. At the trial a torn fragment of the card was produced, which contained the.names of the men, but not the location. Hammond said,he found this torn fragment in an ash barrel some days afterward, and gave it to Commissioner Roosevelt. The "relator points out as suspicious the circumstances that the card,, which' was last in Hammond’s possession, should lack the very portion which, fie says, would have vindicated him. He' also pro yes-facts tending to discredit Hammond’s story of how he found the card. The respondents’' argument, however, leaves the effect of this circumstance in equipoise. Why, they say, should Hammond have produced the card at all if it made against him? They argue, also, that the card in all probability contained the very Eighty-sixth street address which the blotter contained .at first, since the entry in the blotter was made from the card.

We now come to the relator’s own testimony. He swears that he told Hammond that the men must go to Seventy-ninth street and First avenue, and also wrote the direction on a card. The other half of the card, he says, contained this, direction. Ho thus declares that it was Hammond who gave the order to the men, and in this Hammond’s former testimony supports him. He also swears that" later this same night Hammond told him that the men had come back from Eighty-sixth street; that he asked what they were doing up there; and that Hammond said he did not know, for he told them to go to Seventy-ninth street. In this he is corroborated by Clements, a friend of the relator’s of ten years’ standing, who was in the relator’s office, and swears that he overheard what was said. It is, however, peculiar and somewhat significant that the relator, in testifying as to the admission made by Hammond that he sent the men up to Eighty:sixth street, at first inadvertently substituted Seventy-ninth street for Eighty-sixth street. In other words, he made the same mistake at the trial which the witnesses against him say that he made on September second.

The discrepancies and difficulties in the relator’s testimony are many and serious. His testimony varies from that, given on the Buckley trial nearly as much as that of Hammond himself. On the Buckley trial he swore, first, that he had no conversation with Buckley whatever on the night of September second, and then that he had one, but merely abotit certain pay rolls. On his own- trial he had another access of memory, and recollected the whole of the conversations; admitting Buckley’s strenuous- assertion, made in the course of these conversations, of his present position. On the Buckley trial he swore that on the morning of the third, he did not mention Chief Conlin’s name, though now he fully admits the conversation about the report, to which Buckley testifies. On the Buckley trial he swore that Buckley, when he asked why he went to Eighty-sixth street, said it was because the sergeant (Hammond) so ordered him. On his own trial he admits that Buckley said it was' because the relator himself so ordered him.

■ Upon his own trial he also denied in toto Hammond’s testimony as to the erasure in the blotter, and said, he knew nothing about it until the Buckley trial. But he testified that after his talk with Buckley in the evening of September second, he examined the blotter to make sure that the direction given to Buckley had been Seventy-ninth street, and found that the entry was correct, viz., Seventy-ninth street and First avenue. This placed him in a dilemma, for, if the erasure had been made before he looked at the book, he should have seen it, and known of it at the Buckley trial; and if it was made afterward, some one had committed the absurdity of erasing the entry, and then replacing it. Under pronounced prompting from his counsel, he chose to say that he did not observe the erasure when he examined the blotter upon the evening of September second, and intimated that it might still have been there, as he did not scrutinize the book carefully.

It is also very important that three of the men who went with Buckley,- and the only ones who were put on the stand, all swear that the orders they received that night were to go to Eighty-sixth street. These witnesses do not seem to have been present when the relator gave his orders. They swear that the orders in question were read over the desk by the sergeant in charge, viz., Hammond. This is the strongest corroboration of Hammond’s present testimony, and points quite persuasively to the fact that the original entry in the book was Eighty-sixth street and First avenue. Hammond had no possible motive for giving a-wrong direction to the men, and that he should have made a mistake in reading from the book is most improbable. Unless, therefore, the entry was changed between six o’clpck and nine, the relator was not accurate when he swore that it read differently at the latter hour. Even if Hammond’s testimony -on the Buckley trial be taken as true, it does not aid the relator. He then said that he made a mistaken entry," but corrected it before the men left the station house. Assume that he did this just as they were leaving, still the matter was then in his mind, and it is inconceivable tho,t he should have purposely sent' the men on a wrong errand. '

The relator’s counsel makes the claim that there is as little likelihood that the relator made such a mistake as that Hammond .did, because he also read- from a book, viz., the telegraph blotter. This is a book in which is kept a record of dispatches received from headquarters. As to this affair it contained a notification of the course the Cherokee Club Avould take, and a direction to the relator to patrol the routes of parades in your precinct.” Buckley testifies: He (the relator) then picked up the blotter, the telegraph blotter, -and read the route that Avas to be taken, from Eighty-sixth street and East river to First avenue, down First avenue to Seventy-ninth street, where they were to dismiss. He read that route to me three times -so as to impress it upon my memory the better.” The difference between the reading of this telegraph blotter and Hammond’s reading from the station house blotter is apparent. It is fair to assume that Hammond did not read aloud by mistake one address when -another Avas Avritten. Neither did the relator. He read the locations -given" in the telegraph blotter, but made the mistake of not limiting Buckley to that part of the course within his precinct. He is simply asking us to assume that -lie did not make this mistake. .

Finally, there is in the record the admission that the charges -against Buckley Avere false. The relator’s counsel distinctly admits this to be his theory. No one but the relator, hoAvever, made any charges against Buckley. It is said that the relator, in making the false charges against Buckley, relied upon . Hamlnond’s statement -that he gave the order to go to Seventy-ninth street. This reliance upon Hammond was not genuine. The relator, undoubtedly, kneAV better. But even if his good faith in that particular could be granted, we should still have difficulty in reconciling his conduct with a candid desire to do justice. .The report to Chief Conlin,. containing the charge against Buckley, was sent the next day. The l-elator admits that -the matter was important,, and says that he made inquiries of different witnesses in order to ascertain the truth. He did, in fact, inquire, either before or afterwards, of three men who went with Buckley; but each of them then said just what Buckley had said, viz., that they were sent to Eighty-sixth street. There is certainly something suspicious in the almost indecent haste with which this report, containing this serious charge, was-thus sent off.

The crucial question is, whether or not the relator himself gave the erroneous order to Buckley. If he did, it taints the whole of his conduct, and he was rightfully found guilty on all three specifications. As to the last two specifications, the proposition is self-evident. As to the first, the erasure, it is scarcely less plain. The station house blotter was simply an accurate index of the orders given. If, then, the relator gave an order to go to Eighty-sixth street, the change of the entry to Seventy-ninth-street could only be to shield him. Hammond would have had no interest in changing it, for it would not have been his mistake. The relator must, therefore, stand or fall upon the existence or non-existence of the fact above stated; and on that point the clear weight of evidence is against him. Putting aside the testimony of Hammond, we still have Buckley’s, which was consistent and trustworthy. Whatever the relator and Hammond may have done, Buckley, at least,' adhered to the same story • throughout, and his testimony is Worthy of the fullest credit. The former testimony given by Hammond, also, though none the less discreditable, can still be accounted for. The relator was his superior, and, while Buckley alone was concerned, interest seemed to dictate that he adhere to the former. But Buckley was acquitted, and then charges against himself on account of the erasure seemed imminent. Self-interest now seemed to lead another way ; and to this may also have been joined a suspicion as to whether the relator had the ability to fulfill his promise to get the charges against himself (Hammond)'dismissed, if any should be made, or to lighten the punishment. The role of a scapegoat may well have seemed perilous. Thus, Hammond’s action is not hard to follow or account for, though none the less dishonorable.

We have scrutinized' the record with great care to see that no injustice has been done the relator, and are convinced that he had a fair trial, and was properly dismissed. It is impossible to set forth in the brief limits of an opinion all of the facts contained in the record; but nothing has been overlooked which bears in the relator’s favor, and many circumstances which tell against him have not been adverted to. .

Uo point was taken by the relator upon the argument as to the use made by the respondents of his record. This was doubtless because, as he avers in his petition, his record had been good. His averment is; that only two trivial charges had been made against him during the twenty-three years that he had been upon the force. The record, therefore, even if erroneously considered, could only have helped him. It appears, however, that the final resolution of the board, adjudging that the charges were true, made no mention of the record, and consequently had no bearing upon the question of guilt. From what appears in the return, it is fair to assume that the record was considered only on the question of punishment. The case, therefore, is not within the rule laid down in the recent decision in The People ex rel. Kiebrick v. Roosevelt (1 App. Div. 577). Th0re the record was bad, and -the return clearly showed that it was cónsidered upon the question of guilt. That was a close case upon the •evidence, so close that we were of opinion that the record must have turned the scale against the accused. Here it is quite evident that the record played no such part.. It could have had nothing whatever to do with the just conclusion arrived at. The only part it could have played, even if considered upon the question of guilt, was to induce the respondents. to hesitate before convicting an officer whose long service in various grades was tinged with so little that was discreditable.

The proceedings should be affirmed, with costs.

Van Brunt, P. J., Rumsey, Williams and Patterson, JJ., concurred.

' Proceedings affirmed,, with" costs..  