People ex rel. Shiels v. Greene

• Decision Date: 05 August 1904
• Citation: 179 N.Y. 195,71 N.E. 777
• Parties: PEOPLE ex rel. SHIELS v. GREENE, Police Com'r.
• Court: New York Court of Appeals Court of Appeals

179 N.Y. 195

71 N.E. 777

PEOPLE ex rel. SHIELS

v.GREENE, Police Com'r.

Court of Appeals of New York.

Aug. 5, 1904.

Appeal from Supreme Court, Appellate Division, First Department.

Certiorari by the people, on the relation of John H. Shiels, against Francis H. Greene, police commissioner of the city of New York. From an order of the Appellate Division (86 N. Y. Supp. 1144) affirming proceedings of defendant in dismissing relator from the police force of the city of New York, he appeals. Reversed.

Bartlett, J., dissenting.

Louis J. Grant, for appellant.

John J. Delany, Corp. Counsel (Theodore Connoly and Terence Farley, of counsel), for respondent.

O'BRIEN, J.

The relator was removed by the defendant from the police force after a trial upon written charges which amount to neglect of duty; but, to be more specific, the charge was that the relator, having been assigned and detailed as acting captain of police in command of the Nineteenth police precinct, neglected and omitted to suppress a certain house of ill fame therein; that from the 15th to the 30th of July, 1901, the relator, knowing that a notorious house of prostitution was kept and maintained at No. 148 West Thirty-Third street, willfully neglected and omitted to suppress the same, or to take any steps to that end. The relator pleaded not guilty to the charge, and after a trial he was convicted, and removed from the force. The Appellate Division has reviewed the case upon a writ of certiorari and has unanimously affirmed the determination and dismissed the writ. The only witnesses called to prove the charges were four private detectives in the employ of the society for the prevention of crime known as the ‘Parkhurst Society.’ The relator and ten other witnesses were sworn in his behalf, and gave testimony tending to show that he had no knowledge of any improper conduct at the house in question. Six of the witnesses thus called were officers of the force attached to the precinct, and they all testified that they made visits to the house during the time the relator was in command, and personally inspected it by his direction, but observed nothing to indicate that it was a disorderly house, or that improper practices were being conducted therein. They were corroborated by three business men, residents of the neighborhood, who gave similar testimony as to the character of the house. It is quite evident that the commissioner who made the determination in question believed the four detectives rather than the ten witnesses sworn for the relator, and, since the learned court below has unanimously affirmed the determination, the merits of the case are not open to review in this court.

We can deal only with exceptions taken in the course of the trial that raise some question of law. It should be here observed that the prosecution was represented before the commissioner by two assistants of the district attorney, who had charge of the examination of witnesses and the conduct of the case against the relator, and hence no fair excuse can be given for any flagrant breach of the rules of law or evidence in such an investigation. It appears from the record that just before the close of the testimony the commissioner recalled one of the Parkhurst detectives, who had been first sworn in the case, and of his own motion proceeded to interrogate him as follows: ‘Q. Did you at any time send word that a raid was to be made on 148 West Thirty-Third street? A. Yes. Q. When did you send the message? A. On July 20th, at five-thirty p. m. Q. From where? A. The telephone station in the drug store at Thirty-Fourth street and Seventh avenue, the northwest corner. Q. And whom did you send a message to? A. To Edgar A. Whitney? Who is he? A. He Mr. Edgar A. Whitney? Who is he? A. He ran a secret service bureau, and Mr. Whitney agreed for several hundred dollars a month. Q. Why did you send word to Mr. Whitney? A. He paid me for doing it. Q. He paid you for sending word to him that a raid was going to be made? A. Yes, sir. Q. What did he have to do with it? A. He has testified. Q. I don't know anything about his having testified, but what has he to do with the business in connection with your society? A. None. Q. Then he privately paid you to furnish information in regard to your duties? A. He did, sir. Q. Is that what I understand? A. He did, sir. Q. What, that with the knowledge and consent of the authority that you work for? A. Yes, sir; they were aware of every move I made. Q. Still I don't understandwhat Mr. Whitney had to do with it, and that is what I want to know. What was his position? Why should you send reports to Mr. Whitney? A. Mr. Whitney claimed to represent the captain. Q. What captain? A. The captain of the Nineteenth precinct. In all Mr. Whitney paid me $320. Q. Who was the captain of the Nineteenth precinct at that time? A. Captain Flood. Q. And you were being paid at the same time by what society? A. The society for the prevention of crime. This, Mr. Commissioner, was in the nature of a bribe to give him tips of raids that were to be made, and I gave him a...