McHugh v. Mayor and Council of Borough of Hasbrouck Heights

• Decision Date: 16 February 1929
• Citation: 144 A. 799
• Parties: McHUGH v. MAYOR AND COUNCIL OF BOROUGH OF HASBROUCK HEIGHTS.
• Court: New Jersey Supreme Court

144 A. 799

McHUGH

v. MAYOR AND COUNCIL OF BOROUGH OF HASBROUCK HEIGHTS.

Supreme Court of New Jersey.

Feb. 16, 1929.

Certiorari by Patrick McHugh against the Mayor and Council of the Borough of Hasbrouck Heights to review conviction for misconduct as a police officer and a discharge from the force. On rule to show cause. Rule discharged.

Argued before PARKER, J., at Chambers.

John J. Breslin, Jr., of Jersey City, for prosecutor.

Ernest Weller, of Hackensack, for defendants.

PARKER, J. The delay in presenting this case makes an early decision especially desirable. The prosecutor was convicted November 30, 1927, and on Saturday the 13th day of December, 1927, obtained a rule to show cause returnable before the Supreme Court at the State House in Trenton on January 17, 1928 (the regular term of the court), why a writ of certiorari should not issue. Depositions were taken April 21, 1928, and again on June 20, 1928; but the rule was not brought on for hearing until January 26, 1929. Technically, the question before me is whether a writ should issue; but at the argument counsel agreed that, inasmuch as the question was mainly on records of the borough and on the testimony taken at the trial November 30, 1927, by a stenographer, if I concluded to allow a writ, I should take the entire case as though a writ had been allowed and decide it.

Prosecutor McHugh was a police officer, and about 4 o'clock one morning, as he was driving an automobile in the borough, he ran into the rear of a. milk wagon belonging to Sheffield Farms, Inc., which was standing at the curb, the horse being untied, and the milkman engaged in making deliveries close by. This injured and frightened the horse and he ran away. The wagon was also damaged. An officer appeared, and at headquarters Mr. McHugh was put through an examination by the police doctor, who, as I recollect the statements of counsel, reported him as "drunk but not intoxicated." His own testimony was that he did not consider McHugh drunk, but thought he had had some drinks. There were charges preferred with four specifications. One was abandoned, and the other three are substantially the same, namely, intoxication and actions while intoxicated. There was a trial before the mayor and council who, it is conceded, were the proper body to try the ease, and a conviction by unanimous vote. The testimony was transcribed and has been submitted.

The first ground for setting aside the conviction is that the finding of the council was against the weight of evidence, and in support of this it was urged that the only evidence of intoxication was that of two persons who said they saw the prosecutor sitting in his car and that he was drunk. It is argued that this is a pure conclusion based on no premises at all, because neither of...