People ex rel. Graham v. Partridge

Willard Bartlett, J. : I do not question the correctness of the proposition that in a certiorari proceeding to review the dismissal of a policeman it is the duty of the Appellate Division to reverse when the finding of guilt is against the weight of evidence. It does not seem to me, however, that the finding in the present ease is either opposed to the weight of evidence, or without sufficient evidence to support it. The sole question was one of alibi. The identification of the relator as the person who drew the revolver and directed the weapon fir^t toward the two women who accompanied him, and, subsequently, toward the police officer who made the complaint, was clear and satisfactory if the witnesses who testified in support of the charge told the truth. The witnesses for the defense who testified to the presence of the relator neár his home, at a place several miles distant, may well have been honestly mistaken in regard to the precise time when they saw him; and any considerable error in this respect would wholly vitiate the value of their testimony. In a case of this kind, the personal impression made by the appearance and demeanor of the several witnesses and their manner of testifying is of the utmost importance in arriving at a just determination ; and, after reading through the record several times, I find myself unable to reach the conclusion that it is even probable that the deputy police commissioner erred in his decision that the relator was really the man who participated in the affray which has resulted in his dismissal. I, therefore, feel constrained to vote for an affirmance. All concurred, except Hooker, J., who read for reversal, with whom Woodward, J., concurred.