
    The People of the State of New York ex rel. William L. Campbell, Relator, v. The Board of Police Commissioners of the City of Schenectady and Others, Respondents.
    
      Indecent exposure—right of the Appellate Division on a review by certiorari —pre- ■ stmvption in favor of the accused.
    
    Upon the hearing on the return to a writ of certiorari, issued to review the action of the police board of a city in dismining the chief of police for an indecent exposure of his person, the Appellate Division may not only inquire whether there was any competent proof of all the facts necessary to sustain the finding of the police commissioners, but may also consider the evidence, and if it finds a preponderance of evidence against the determination of the police board reverse it.
    The proceeding in such a case is criminal in its nature, and the officer is entitled to the benefit of the same presumption which would have existed in his favor if the charge had been made against him in a criminal court.
    "What evidence is insufficient to sustain such a charge, considered.
    Certiorari issued out of the Supreme Court and attested on the 21st day of September, 1896, directed to the board of police commissioners of the city of Schenectady and others, commanding them to certify and return to the office of the clerk of the county of Schenectady all and singular their proceedings relating to the dismissal of the relator from the office' of chief of police of the city of Schenectady.
    
      Hastings & Schoolcraft and Alonzo P. Strong, for the relator.
    
      S. W. Jackson, for the respondents.
   Putnam, J.:

The relator, William L. Campbell, was ajipointed chief of police of the city of Schenectady on the 23d day of December, 1872, and served as such officer until removed by the police board of said city on the 3d day of July, 1896, a period of over twenty-three years. He was entitled to hold his office during good behavior. It does not appear that during his extended period of service he was found guilty of any non-performance of duty or convicted of any offense until the alleged one for which he was removed. Under the statutes relating to the city of Schenectady, the police board thereof had power to' remove, him on proof of charges preferred against him in writing, of illegal, corrupt or otherwise improper conduct.

On1 the 20th day of July, 1896, one Lewis Friday made a written complaint to the said police board charging the relator with a willful,, unlawful and intentional exposure of his person and private parts in the month of July or August, 1895. The relator was notified of the charge, a trial was had and the police board adjudged that Campbell was guilty of the offense set forth in the charge and dismissed him from his office as chief of police.

In such a case as this we are authorized to inquire, not only whether there was any competent proof of all the facts necessary to be shown to sustain the finding of the police commissioners, but also: to consider the evidence, and if we find a -preponderance of evidence against the determination of thepolice board to reverse their determination. (People ex rel. McAleer v. French, 119 N. Y. 502.)

The proof before the police board was sufficient to show that the relator exposed his person at the time and place stated in the charge. But something more was necessary to be shown to sustain a conviction. It was necessary to show that he “willfully and lewdly”' exposed his person (Penal Code, § 316); that he had been guilty of an intentional, wanton and-indecent exposure of his person. (Miller v. The People, 5 Barb. 203.)

As held in the case last cited the intent with which the act was done was a material ingredient of the offense. ' The criminal intent must be proved or appear from the evidence. If it appeared before the police board that the exposure of his person by the relator, at the time and place mentioned in the charge, was a heedless, inadvertent, unintentional act, he'should have-been acquitted; if the evidence justified the finding that there was a willful, intentional,, wanton exposure of his person, the finding of the police board should be sustained. The proceeding was criminal in its nature (People ex rel. Miller v. Wurster, 91 Hun, 233-235), and, hence, the relator was entitled to the same presumption in his favor that would have existed if the said charge had been made against him in a criminal court. He had acted as chief of police for over twenty-three years, and it does not appear that he had before been convicted of any offense or malfeasance in office. Under all the circumstances, the presumption was rather that the exposure- of his person was unintentional than that it was a willful, lewd and wanton act. The relator, on the trial before the police commissioners, was entitled to the benefit of this presumption.

We are unable to find in the case any evidence to overcome this presumption. Had the relator exposed his person in a public street or place, or in a room where there were other people, proof of the act Avould have raised the presumption of a criminal intent. But in. this case the exposure was at the door of the water closet in his yard in the rear of his premises. As Mrs. Friday testified, his clothes at the time were in the condition that they would have been if lie had been using the closet for legitimate purposes. It does not appear that relator saw either of the íavo witnesses Avho testified to the exposure, or that he was conscious of being Avithin their Anew. Mrs. Friday said his eyes were turned toivards where she stood, not that he saw her. Mr. Friday testified at one time that relator’s face was turned towards him, but he couldn’t see just Avhat Way his eyes glanced. Again, he said that Avlien he Avent outside, Campbell, as he saiv him, disappeared inside the water closet. Heither of the witnesses ever suav Campbell, at the closet before or after the occurrence. The relator at the time did not make any motions or indications” or sound.

Without attempting to discuss the testimony at length, we are of opinion that all the circumstances and testimony in the case indicate that the exposure of his person by the relator, as testified to by the complainant and his wife, Avas an inadvertent act, and not the intentional, wanton and leAvd exposure of his person with Avliich he was charged.

As above suggested, the exposure of his person by the relator at the door of his oavii water closet in his rear yard, under all the circumstances, should be presumed an unintentional and not a criminal act. We find no evidence to overcome this presumption, but, on the contrary, all the testimony and circumstances tend to show his innocence of the charge made against him.

The determination of the police board should be reversed, Avitk. fifty dollars costs and disbursements.

All' concurred.

Determination of the police commissioners reversed, Avith fifty dollars costs and disbursements.  