People ex rel. Weston v. McClave

Full title: THE PEOPLE ex rel. CORNELIUS WESTON, Appellant, v . JOHN McCLAVE et al.…

Court: Court of Appeals of the State of New York

Date published: Dec 2, 1890

25 N.E. 1047 (N.Y. 1890)

25 N.E. 1047

34 N.Y. St. Rptr. 274

Opinion

Argued October 20, 1890

Decided December 2, 1890

Delos McCurdy for appellant. D.J. Dean for respondents.

GRAY, J.

The ground on which the appellant seeks to reverse the determination of the court below, by which his dismissal from the police force has been upheld, is that the proceedings before the commissioners of police were rendered invalid; because conducted in violation of that clause of the State Constitution, which declares that "no person shall be compelled in any criminal case to be a witness against himself." (Art. 1, § 6.) The difficulty he encounters, however, is, assuming the applicability to such proceedings of the constitutional inhibition, that the record here does not disclose the commission of any such error. The relator was a police sergeant, and he was charged with conduct unbecoming an officer; the specification being that he had engaged in an altercation with another sergeant in the station-house. At the hearing before the commissioners upon this charge, the relator was sworn upon the opening of the case and examined by the commissioners. He was asked to state what occurred between him and sergeant Allen, and his counsel interposed an objection "on the ground that no charge and no case has been made out against the accused, and until there is, he need not answer any questions, and, further, that he cannot be called upon to testify against himself until a case is made out against him and witnesses called to sustain the charge." To the overruling of the objection an exception was noted, and, thereupon, the relator proceeded to give his version of the affair. The objection, on its face, does not suggest an appeal to the constitutional privilege, but, rather, is directed to the order of the examination. The basis of his objection to testifying, when sworn for that purpose, is that no case had been made out, nor any witnesses called, to sustain the charge against him. But the proceedings of the board of police commissioners are not governed by any particular rules of procedure, other than their own. The statute (Chap. 180, Laws 1884) authorizes the board to adopt rules for the examination, hearing and determination of charges against members of the force. It guards the rights of the accused member, by providing that the charges shall be in writing and shall be investigated upon a reasonable notice to him. This power to regulate the manner of procedure in the trial of an accused member is, in the nature of things, reasonable, and strict conformity with the modes of procedure in courts of law is not expected, nor essential. The proceedings are disciplinary in their nature. For the maintenance of the police force in the most efficient state possible, especial powers are conferred upon the commissioners by the statute, and great latitude is allowed them in the exercise of those powers. The tenure of the policeman's office must necessarily be dependent upon his implicit obedience to the disciplinary rules which his superiors establish, and though entitled to a trial upon any charge, involving subjection to punishment, that trial is, practically, simply an examination of the matter; whereat the accused can be present and be heard in defense or excuse. Such an examination is not like a trial in a court of law and, for its legal correctness, it is only required that no rule of law shall have been violated, nor unwarrantable punishment be inflicted.

The commissioners prescribe rules for the government of the force and by which the personal and official conduct of its members shall be regulated. They are empowered to punish a member who is guilty of an offense against the rules they establish, or who is guilty of conduct unbecoming an officer, and the only limitations upon their disciplinary powers is the express one that a trial shall be had upon written charges, and upon a reasonable notice to the accused, and the implied ones that that trial shall be a proceeding fairly conducted; that the decision shall be based upon evidence of the truth of the charges, and that no immunity, or privilege, secured to the accused by the law of the land, shall be violated. The legality of the trial does not turn upon the order in which the proofs are received, and if the accused is called upon, as was the case here, and requested to state what occurred, although upon the occasion when he was an actor, the examination is not invalidated for error, merely because made at the commencement of the case, rather than at some later stage. They may prefer to hear his statement, and non constat but that they may accept his version of the affair. In this case, the record shows no denial of the charge by any plea, nor was the accused asked if he was guilty, or to answer any question which, of necessity, involved evidence of his guilt. If he had refused to answer because his testimony might tend to criminate him, a very different question would be presented for our consideration, and one which we are not required to determine at this time upon this record. His objection was, in effect, that the commissioners ought to make out a case against him before he should be compelled to testify. We see no propriety in that, and if the commissioners chose, in their investigation, to question the accused first, about the circumstances of the case, there was no rule of law which militated against their doing so. It is in their power to proceed in their investigation of the facts in any manner they choose, and if, in the course of so doing, the legal rights or privileges of the accused are violated, he has the right to a review of the proceedings in the courts. But it is necessary, in order to make a ground for a reversal, other than that based on the conclusions from the proofs, that the attention of the commissioners should have been called to the error in the examination, or in the admission, or exclusion of evidence by an objection which states the vice, or illegality complained of.

For the reasons stated, the order appealed from should be affirmed, with costs.

All concur.

Order affirmed.