Majority
p. 504People ex rel. McCormack v. McClave et al., Police Commissioners. (Supreme Court, General Term, First Department. January 24, 1890.)
Headnote
Criminal Law—Former Jeopardy.The fact that a judgment of the police commission dismissing relator from the police force was reversed on appeal because of the rejection of proper evidence at the trial, but on which appeal the merits were not considered, forms no bar to another trial for the same offense.
Certiorari to police commissioners of the city of New York.
Action by the people, on the relation of Hugh McCormack, to review the action of the police commissioners of the city of New York in dismissing the relator from the police force. The charge against him was that he had assaulted one Joseph Danut, and did not arrest him. He was convicted on a
p. 505Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
former trial, but the judgment of conviction was reversed ( 3 N. Y. Supp. 841 ) because of the rejection of proper evidence by the commissioners at the trial. On the new trial, he was again found guilty, and dismissed from the force. He now claims that the former conviction and reversal are a bar to any other proceedings for the same offense.
J. M. Tierney, for relator. J. J. Delany, for respondents.
The grievance of which the relator complains is that he has been placed upon trial again for a violation of duty for which he was convicted on a former trial, the judgment in which was reversed upon the ground that evidence which the court thought he was entitled to produce and use, he had not been allowed to present for their consideration. There is no merit in the point presented upon this circumstance. On the first appeal the merits were not considered, for the reason just stated, viz., that the judgment was reversed upon the ground that the commissioners refused to admit testimony which was thought to be pertinent. The proceedings of the commissioners should be affirmed, and the writ dismissed.