People ex rel. McCormack v. French — 21 N.Y. St. Rep. 276

Majority

p. 276

The People ex rel. Hugh McCormack, Relator, v. Stephen B. French et al, Commissioners, Resp’ts.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

Police—Cebtioeaei—When dismissal beyeesed.

Where a witness called by the relator in his trial before the police commissioners on the charge of alleged assault in a restaurant, was put aside by the examining commissioners after a few preliminary questions, showing his connection with the post office department and his removal; and the relator was not given an opportunity to ask the witness any questions: Held, that the relator’s dismissal cannot be sustained, as no tribunal, proceeding according to the course of the common law, or subjected to its rules in part, can arbitrarily reject a witness called by the accused before he has given any evidence, merely from developments which might affect his credibility with the tribunal in which he appears.

Certiorari to review relator’s dismissal.

John M. Tierney, for relator; William L. Turner, for resp’ts.

The relator was charged with assaulting one Danut in -a restuarant, and on the trial had no counsel. The examination of the witnesses was conducted by one of

p. 277

the commissioners, and the defendant on cross-examination asked few questions. The testimony presented against the relator was conflicting, a condition which was increased when he was examined, and a jury might well have found in his favor or disagreed. This view is not important in consideration of the powers of the commissioners who are not wholly controlled by the rules which must prevail _ in judicial investigations, but it becomes so in connection with an incident of the trial to which reference must be made. The last witness called was for the defendant whom he succeeded.

He was examined by one of the commissioners and asked questions as to his business, his connection with the post office department and his removal. This sufficiently appears from the record, indeed conclusively so, and as a result of such examination, the commissioner said: “I do not want your testimony.” The relator had asked no question, although the witness was called on his behalf, but taken in hand by the commissioner at once and put aside. It does not appear that the defendant did not want his testimony. On the contrary having been called on his behalf it must be presumed that he did want it, and it may be that if given, it would have satisfied the commissioners that the charge made was not sufficiently sustained to warrant the relator’s dismissal. However that may be no tribunal proceeding according to the course of the common law or subjected to its rules in part can arbitrarily reject a witness called by the accused before he has given any evidence merely from developments which might affect his credibility with the tribunal in which he appears. The act of the commissioner was a judgment in anticipation, and therefore premature. It did not follow that the witness because of his removal from the post office, and seemingly for intoxication, was disqualified. His condition at the time of the occurrence as to which he was probably called, might have been and it is to be presumed was such as to enable him to give an account of what he saw and heard, and it might be as already suggested so impressive as to change the opinions theretofore entertained of the truthfulness of the charge under investigation. For this reason the dismissal cannot be sustained, and the judgment of the commissioners must be reversed.

Ordered accordingly.

Van Brunt, P. J., and Macomber, J., concur.