People ex rel. Ely v. Porter

The relator was captain in the Ninth regiment of the national guard of the state of New York. He was charged with conduct unbecoming an officer and gentleman. By the specification which was made in the elaboration of the charge, it was stated that while holding a commission in the national guard as captain in the Ninth regiment of infantry, and on or about August 24, 1887, at the city of New York, he represented to Lawrence P. Mingey that he was in need of money, and would, in consideration of the payment to him by Mingey of the sum of twenty dollars, assign to him a check for thirty dollars, which he stated and represented would be paid him in a few days thereafter, for his uniform allowance, by the adjutant-general, and that he was entitled to the check and the proceeds thereof.

That in reliance upon the representation Mingey paid to the relator this sum of twenty dollars, and received a written assignment from him of his check from the state of thirty dollars due on uniform account, the same to be endorsed and promptly forwarded to Mingey upon its receipt by the relator. It was further charged that prior to the time when the representations and the transactions were made, and took place, and on or about June 24, 1887, the relator had already, upon the credit of his uniform allowance, obtained from Major Clifford A. H. Bartlett the sum of thirty dollars, and delivered to him a paper, whereof a copy is set forth. This was a receipt of the sum of thirty dollars from the major, to be returned by the state uniform check, when received.

After obtaining these sums of money it was charged that the relator received from the adjutant-general the check for thirty dollars for his uniform allowance and endorsed it and appropriated the proceeds of the same to his own use.

Proceedings were taken, as they were required by the statute, to bring the relator to trial upon these charges,

This was held in Smith v. Whitney ( 116 U. S., 167 ), where the court, approved of the conclusion expressed upon another occasion, that it would be extremely absurd to expect the same precision in a charge brought before a court-martial as was required to support a conviction by a justice of the peace.” Smith v. Whitney, 116 U. S., 185 .

It was sufficient,for the purposes of the proceeding, that the charges were intelligently expressed, with reasonable clearness, stating the times and place when the misconduct was alleged to have occurred.

The acts of misconduct charged, did consist of acts unbecoming an officer and gentleman, and they were connected with and related to the military service, for they were performed concerning and about the money, or check which the relator was entitled to as an officer, and did receive from the state in that capacity in his uniform account. And by the acts which were made the subject of the charge, he endeavored to dispose of the check to be received, and which was afterwards actually delivered to him, to two different individuals, misrepresenting the facts as they existed, to succeed in obtaining money, on the faith of such a disposition of the check. In his conduct based upon the right to the check, he successfully imposed upon two different individuals. And that surely was conduct unbecoming to him, both as an officer, and as a gentleman.

Because his acts and representations may possibly have resulted in the commission of a criminal offense, the law did not require him to be indicted and tried before his trial could proceed in the tribunal when it took place. The case of People v. Commissioners ( 20 Hun, 335 ), decides no such general proposition. It arose under the police laws of the city of New York, having no application whatever, by way of analogy or otherwise, to this case. Neither does either one of the other authorities referred to in support of this writ.. The relator was tried before the court-martial, under the powers conferred by chapter 299 of the Laws of 1883, which authorized this trial and proceeding. By this

The authority which may be exercised over the misconduct of military officers was very fully examined in the case of Smith v. Whitney (supra).

And it was there said by the court in the course of its decision that, “under every system of military law for the government of either land or naval forces, the jurisdiction of courts-martial extends to the trial and punishment of acts of military or naval officers, which tend to bring disgrace and reproach upon the service of which they are members, whether those acts are done in the performance of military duties or in a civil position, or in a social relation, or in private business.” 116 U. S., 183 -4. And the authorities to which reference was then made fully sustained these legal principles. The case of People v. Townsend (10 Abb. U. S., 169), has been referred to as an authority in support of the writ, but it is not. Por then the conduct which was made the subject of the charges was entirely different and distinct from that presented in this case, which was clearly within the language of the statute under which the relator was tried.

By the judgment which was pronounced, the relator was sentenced to be cashiered from the service, and this judgment was afterwards approved by the governor as commander-in-chief of the state national guard. And it was expressly authorized by subdivision 18 of section 119 of chapter 299 of the Laws of 1883. By that it has been provided that on conviction of the officer for the offense in this manner defined, he may be sentenced to be cashiered, incapacitated from holding any military commission, fined to any amount not exceeding $100, or reprimanded, or to all or either of such fines and penalties. And that clearly warranted the sentence of the court in finding the relator guilty in this instance, and subjecting him to the punishment which it did. The proceedings' brought up by the writ should, therefore, be affirmed with costs and disbursements amounting to the sum of fifty dollars.

Van Brunt, Ch. J., concurs.