Opinion
March 15, 1912.
Jacob Rouss [ Louis J. Grant with him on the brief], for the relator.
James D. Bell [ Frank Julian Price and Archibald R. Watson with him on the brief], for the respondent.
On the 6th day of July, 1910, three charges in writing were filed by an inspector in the police department of the city of New York against the relator, a patrolman. These charges were (1) that the relator at about two-thirty A.M. of January 23, 1910, left his post for reasons other than the performance of police duty and entered the premises No. 2084 First avenue, in the borough of Manhattan; (2) that he violated rule 45, paragraph 14 of the rules and regulations of the police department by failing to make report of such action at the thirty-ninth precinct station house; and (3) that he failed and neglected to take proper police action upon finding one Alvina Seiler, aged fifteen years, in said premises at said time. The relator was tried on those charges before the third deputy police commissioner, and on the 3d day of August, 1910, he found the relator guilty as charged and recommended his dismissal. That finding and recommendation were approved by Police Commissioner William F. Baker on the 16th day of August, 1910, and on the same day an order dismissing the relator from the police department was signed.
It appears that some time during the evening of January 22, 1910, or the early morning of the following day, one Edward F. Downes, a patrolman attached to the same precinct as the relator, brought the girl, Alvina Seiler (with whom he had previously indulged in sexual intercourse), to the building No. 2084 First avenue, a garage then used by the board of education of the city of New York and occupied by a night watchman named James Cuffe, and left her with him. Downes was tried jointly with the relator on charges relating to his conduct with this girl and was dismissed from the department. After Downes left the garage Cuffe unsuccessfully endeavored to induce the girl to leave. Upon her refusal to leave, Cuffe states that he waited until the relator, who then was on patrol duty, came along; that he informed the relator that he did not wish the girl to remain in the garage; that the relator asked the girl her name and where she lived; that she refused to give the information, stating that it was none of his business; that relator then informed her that if she did not leave before he returned he would have to arrest her; that after relator left, the girl still refused to leave; that Cuffe again summoned the relator, who asked the girl if she had no home and what she meant to do; that she replied, "Yes; it is none of your business;" that the relator said, "The best thing you can do is to go where you belong. * * * I will be back right away;" that the relator left and returned in five or ten minutes and then found that the girl had departed meanwhile.
There is considerable conflict in the testimony as to whether the relator actually entered the building at the times he had these conversations with Cuffe and the girl. She claims that at the time of the first visit relator entered the building without having seen her and without having been summoned by Cuffe, and that at this time she hid from the relator before he saw her, pursuant to a direction from Cuffe, and that only after relator had entered the building did Cuffe inform him that she was in the building and request him to put her out. She also claims that when she first spoke to relator she informed him that Downes had brought her to the building after having indulged in sexual intercourse with her. Her testimony in these respects is uncorroborated and is denied by both the relator and Cuffe. Aside from these uncorroborated portions of her testimony, her account of the events in the garage is substantially the same as the stories told by Cuffe and the relator. Cuffe, on his direct examination, stated that relator entered the building to deal with the girl, and on his cross-examination denied that the relator entered the building at all. The relator claims that he remained in the street, standing at the threshold of an open door, talking to Cuffe and the girl, without entering the building. It is conceded that the relator made no report of these happenings.
The determination of the question whether the relator entered the garage was evidently deemed of great importance on the trial as bearing upon the truth of charges 1 and 2, that the relator had entered the building for other than police duty and had made no report of such desertion from his post. Much of the examination of the witnesses was devoted to an attempt to determine the truth of this matter, and the trial deputy adjourned the trial in order that he might obtain stenographic records of a previous examination of the relator in the district attorney's office on that subject. Those stenographic minutes, when produced, established that the relator had told the same story regarding that matter at the district attorney's office as he told at the trial of these charges.
The fact that the relator did enter the building may, perhaps, be regarded as supported by sufficient evidence. We do not, however, consider that the fact of such entry, in view of the evidence in the record, sustains, or even tends to sustain, charges 1 and 2. Paragraphs 14 and 15 of rule 45 of the rules and regulations of the police department contain the provisions which, it is claimed, were violated by the relator when he entered the garage and failed to report such entry. Those paragraphs read as follows:
"Paragraph 14. Patrolman while on duty must not enter any house nor leave their ( sic) post, except in discharge of Police duty. If required by any person under any circumstances to leave post in the discharge of Police duty, they will, except in great emergencies, first enter in their memorandum book the time and at whose request they leave post, as follows: `Left post at ____ o'clock at request of ____,' and will complete the entry of the facts of leaving post and the time of their return thereto as soon as they have returned to post.
"Paragraph 15. They will also report the same to the first Lieutenant or Sergeant of their Precinct whom they may meet thereafter, giving the time and circumstances of such call, and the time of return to post they will also make report at the Station-house."
It appears from an inspection of these rules that the patrolman is not forbidden to enter a house or leave his post "in the discharge of police duty." Manifestly, if the relator entered the garage to investigate Cuffe's story regarding the girl, such entry was in discharge of police duty and not a violation of the rules. The only testimony that he did not enter for that purpose is the uncorroborated statement of the girl. Despite her tender years, her debased character is such that her uncorroborated statements cannot be deemed sufficient to sustain such an accusation as is the subject of this investigation. ( Moller v. Moller, 115 N.Y. 466; People v. Donohue, 114 App. Div. 830, 833; Osborne v. Seligman, 39 Misc. Rep. 811.) Moreover, it appears from these rules that the patrolman is required to make a report only when he has left his post. There is no evidence in the record to show that relator's entry of the garage constituted a leaving of his post. On the contrary, the only testimony adduced on that subject established the fact that this garage was covered at the time in question by relator's post. Inspector Titus, the complainant, testified as follows: "Q. Were both these officers [Downes and the relator] attached to the 39th Precinct on January 22nd and 23rd, last? A. They were, sir. Q. What tour did Downes have? A. Downes had the first tour; the post he covered was known as night post 4, and 1/2 of 3. Q. Did it cover this garage? A. Yes, sir. * * * Q. What tour did Leonard have? A. Leonard had from 2 A.M. until 8 A.M. of January 23rd, the same post."
It is well settled that in order to sustain grave charges like those herein presented, there must be positive and not inferential evidence of each material element of the offense. ( People ex rel. Roe v. Maclean, 57 Hun, 141; People ex rel. Deloughry v. Welles, 5 App. Div. 523; People ex rel. Kenny v. Bingham, 127 id. 49.) As the record stands, there is no evidence whatever to show that the relator was absent from his post while in the garage, and the uncorroborated statement of the girl that he entered the garage without having been summoned by Cuffe, if entitled to any weight, is in view of her habits and character merely a scintilla, quite insufficient to sustain the determination of the police commissioner. ( People ex rel. Coyle v. Martin, 142 N.Y. 352, 356.)
Most of the testimony relates to the first and second charges. That relating to the third charge, that relator did not take proper police action upon finding the girl in the garage is neither extensive nor conflicting. On that testimony the learned counsel for the respondent contend that the relator should have been convicted of failing to take proper police action; that the relator should have conducted a more thorough investigation regarding the girl's character and antecedents when he found her alone in the garage with Cuffe, and should not have left her there at that early morning hour after having merely admonished her to go home under threat of arrest if he found her there upon his return. On the other hand, it is contended by the learned counsel for the relator that he had a right to use his own judgment; that he could not take the girl into custody without a complaint and a complainant against her, and that no overt act was committed by her in his presence warranting her arrest. Assuming but without deciding that the third charge has been proven, it is obvious that the trial deputy and the commissioner may have been influenced in convicting the relator thereof and in sentencing him to the extreme penalty of dismissal by an erroneous belief that he had also been proven guilty of concealing the events at the garage in violation of the rules of the department. The relator's previous record in the police department appears to be good, and we are of opinion, in view of all the facts, that the ends of justice will be best subserved in this case by reversing the determination of the police commissioner because of the erroneous decision of the first and second charges, and because of the possible effect of that error upon the determination of the third charge and upon the punishment inflicted, and by directing a new trial of these charges before the present commissioner or one of his deputies. (See People ex rel. Reardon v. Partridge, 86 App. Div. 310.)
The determination should be reversed, without costs, and a new trial directed in accordance with the views herein expressed.
JENKS, P.J., CARR, WOODWARD and RICH, JJ., concurred.
Determination reversed, without costs, and new trial directed in accordance with opinion.