People ex rel. Fitzgibbons v. Roosevelt

Ingraham, J.: The relator was charged with conduct unbecoming an officer, the first specification being that when standing in the public street, and when asked by a roundsman what he had in his blouse jiocket, he refused to explain, and when ordered to report to the station house he refused to do so; and the second specification being that when the roundsman took hold of him (the relator) to bring him to the station house, the relator drew his revolver in a threatening manner and Tefused. to go. He was not charged with drinking whiskey while on duty, but simply with conduct unbecoming an officer, because of his refusing to comply with the orders of his superior officer. To support these charges the roundsman was sworn, whose testimony, if it is to be believed, fully supported the charge. He testified that he went up to the relator, noticed something in the breast pocket of his blouse, of the shape of a bottle; asked him what he had there; the relator refused to answer; the roundsman felt it and discovered that it was a bottle. The roundsman then asked the relator to show it to him and the relator refused, whereupon the roundsman ordered the relator to report to the station house and explain there, which he refused to do. Upon Officer Campbell’s coming up, the relator pulled his revolver out of the cover, when the roundsman said, “You mean that for me?” The relator answered, “Yes.” Upon that Officer Campbell stepped between them and said he would take the relator to the station house, which he did. Sergeant Ryan testified that he was on duty at the station house when the relator and the roundsman came in. At that time the roundsman made a statement to the sergeant, which was substantially the same as that testified to by him upon the trial, except in regard to some further details as to the relator throwing away the bottle on his way to the station house, and the roundsman picking up a piece of it and discovering that it had contained whiskey. [406] Officer Campbell was called, and testified that he was with the relator on the night in question ; that he did not see him drinking from a-bottle; that he (Campbell) did not drink out of any bottle that morning; that the relator took his revolver from his pocket. Campbell also testified that the roundsman in the station house did charge the relator with having thrown the bottle away, and that he charged the relator in the station house, with a “ felonious assault.” So far as this charge is concerned, the testimony of Campbell tends, to support the testimony of the roundsman. The credibility of the witnesses, when- there is a disagreement, is for the commissioners and not for the court, and how it can be said that upon this evidence the finding sustaining this charge is against the weight of evidence it is difficult for me to see. It is true that the roundsman testified to some other facts, such- as seeing the relator and Campbell drinking together, and as to the relator’s throwing away the bottle of whiskey and picking up a piece of the bottle, which was unsupported by any other evidence and denied by both the relator and Campbell. But assuming that the roundsman’s testimony as to these facts is not to be believed, the charge and specifications still remain, and they were supported by a preponderance of evidence before the commissioners. It will hardly be denied that a refusal of an officer on post to produce a bottle in his possession which his superior officer suspects contains whiskey, his refusal to go to the station house when ordered to by his superior officer, and when the officer attempted to take him to the station house his pulling out a revolver, saying it was for the superior officer, is a serious breach of discipline, and such conduct as would justify the commissioners in removing the offender from the force. These facts were certainly testified to by the roundsman, and his Statement was not denied by any one except by the relator. The record of the relator was also- in evidence before the commissioners, and being in evidence they were entitled to consider it upon the question of his removal. This record shows a series of convictions for conversing in the streets while on duty, absence from duty, in a liquor store while in uniform, using profane and insulting language - to a superior officer, in each year that he has been on the force. We think that upon this testimony the commissioners were [407] entirely justified in finding the officer guilty, and that their proceedings should be sustained. The writ is, therefore, dismissed, with costs. Williams and Patterson, JJ., concurredVan Brunt, P. J., and-O’Brien, J., dissented.