| N.Y. Sup. Ct. | Dec 15, 1863
Lead Opinion
The relator was charged with neglect of duty by reason of being absent from duty from October 26th, 1861, to January 8th, 1863.
Of this charge, he was convicted. The effect of this conviction is, that he was convicted simply of being absent from duty for the period mentioned..
This conviction was for a matter which, at the time of its rendition, constituted no offence.
As the rules stood at the time of this conviction, the conviction could only be for absence from duty without leave. The wording of the by-law clearly makes the offence to which the penalty is attached, absence without leave. So far as the proof is concerned, it perhaps would be incumbent on the accused, after the prosecution, had shown absence from duty, to show that he had leave, otherwise it would be presumed that he had not leave. However this may be, it is absolutely necessary that the record should show a conviction for some offence, punishable by the court which, or magistrate who, convicts. The record in this case, for the reasons above stated, does not show any such conviction.
Conceding that by the law as it stood prior to its amendment, absence with or without leave constituted an offence to which
Upon this ground alone the order below must be affirmed.
It is not necessary now to inquire as to how far a common-law certiorari brings up the evidence, and as to how far the court will, on such certiorari, examine into the merits; but it may be observed, that from the opinion of Judge Edmonds in Morewood a. Hollister (6 N. Y., 309, 327), and the cases cited by him, it would seem that to a writ of certiorari in cases of summary conviction, the whole evidence which applies to the charge must be set out, that the court may judge whether sufficient proof appears on the face of it to sustain every material allegation and to justify the adjudication.
I feel constrained, however, to remark that the judge at special term was not too strong in his language when he characterized the action of the Board of Police Commissioners in this case as a proceeding which shocks one’s sense of justice. I would merely amend his exclamation by saying that the proceeding is such as to shock every man’s sense of justice, excepting only that of the men then composing the board.
Order affirmed with costs.
Concurrence Opinion
I concur in the conclusion.
It is wholly inconsistent to find an officer guilty of neglect of duty for absence during the time he was unlawfully dismissed from service. The officer was not guilty of any offence for being absent at such time. The judgment ought to be affirmed with costs.
Order of special term affirmed, and copviction reversed.