THE PEOPLE OF THE STATE OF NEW YORK ex rel. FREDERICK C. GERHARDT, JR., Relator,
WILLIAM F. BAKER, as Police Commissioner of the City of New York, Respondent.
CERTIORARI issued out of the Supreme Court and attested on the 31st day of May, 1910, directed to William F. Baker, commissioner of police of the police department of the city of New
York, commanding him to certify and return to the office of the clerk of the county of New York all and singular his proceedings had in dismissing the relator from the police force of the city of New York.
Louis J. Grant of counsel [Jacob Rouss with him on the brief], Grant & Rouss, attorneys, for the relator.
Harry Crone of counsel [Archibald R. Watson, Corporation Counsel], for the respondent.
The relator was charged with conduct unbecoming an officer, the specific charges being: 1, that at or about twelve-ten A. M., on January 1, 1910, he assaulted one Ernest E. Oberst without cause or provocation by striking him on the head with a black jack; 2, that at that time he arrested said Oberst, falsely charging him with an assault; 3, that at the same time he arrested one John T. Moore, falsely charging him with an assault; 4, that at the same time he arrested one Augustus Hayes, falsely charging him with an assault. He was found guilty of all the charges.
The respondent seeks to sustain his determination upon the ground that there is some evidence to support it. The question, however, is not merely whether there was any competent proof of the facts necessary to authorize the determination, but also whether, upon all the evidence, there was such a pre-ponderance of proof against the existence of such facts that the verdict of a jury affirming the existence thereof would be set aside as contrary to the evidence. (Code Civ. Proc. § 2140.)
The charges grew out of an affray at about the time stated at or near the entrance to a saloon on Thirtieth street, between Seventh and Eighth avenues, kept by said Moore. The said Oberst was Moore's bartender, and Hayes was a crony of Oberst's and an habitue of the saloon. They and one McGee, also a crony of Oberst's and an habitue of the saloon, were the witnesses against the relator. It is undisputed that the relator arrested Oberst, Moore and Hayes, and charged Moore with interfering with an officer, Oberst and Hayes with assault. So the charge of making a false charge of assault against
Moore falls at the outset. Oberst admitted that he struck the relator at least once and 'gave him one black eye.' Hayes denied that he struck the relator at all and asserted that he did not become involved until after the trouble was over, when he asked Oberst a question; whereupon the relator, without cause, arrested him. Oberst admitted that Hayes 'got in the mix-up,' and an officer who came to the relator's assistance, and the lieutenant in charge of the desk at the police station, both testified that Hayes said at the station, 'We had no right to hit the cop in uniform,' or substantially that. Hayes would not deny that he was drunk and the evidence plainly shows that both he and Oberst were considerably under the influence of liquor, the latter being so boisterous that he had to be confined in a separate room at the station while the lieutenant was getting an account of the occurrence. It is undisputed that the relator received two black eyes, cuts and bruises on his face and neck, and a blow upon the mouth sufficient to draw blood, and that at eight o'clock in the morning, when he was examined by a surgeon, both eyes were swollen nearly shut. He was on sick leave and under the care of a physician for ten days. It is not pretended that any but Oberst and Hayes struck him. Indeed there is no denial that his injuries were caused by them but for the testimony of Hayes above mentioned. All but the first charge then were plainly disproved.
The relator testified that when near the said saloon, at about midnight on the date in question, he heard two pistol shots and saw Moore in front of the saloon; that he inquired of the latter if he fired the shots, to which he replied that it was none of his [the relator's] 'damned business; ' that he then undertook to enter the saloon, informing Moore that he was going in to investigate, but Moore said that he could not go in and tried to prevent his doing so; that he then informed Moore that he was under arrest, whereupon Moore tried to get in the saloon and close the door in his face; that a scuffle ensued, Moore being within the saloon and the relator apparently about on the threshold; that while he and Moore were struggling in the doorway Oberst approached from within the saloon and struck him twice and thereupon he pulled his 'black jack' and struck Oberst on the head, just as the latter was making a
third attempt to strike him; that then Hayes came up and struck him three or four times, when he backed up against the door and drew his pistol; and that he was struggling with Moore and Hayes for the possession of it when another officer arrived. The said officer testified that when he arrived the relator was backed up against a door or window holding Oberst ...