People ex rel. Weston v. McClave

The ground on which the appellant seeks to reverse the determination of the court below, by which his dismissal from the police force has been upheld, is that the proceedings before the commissioners of police were rendered invalid because conducted in violation of that clause of the state constitution which declares that “ no person shall be compelled in any criminal case to be a witness against himself.” Art. 1, § 6. The difficulty he encounters, however, is, assuming the applicability to such proceedings of the constitutional inhibition, that the record here does not disclose the commission of any such error. The relator was a police sergeant, and he was charged with conduct unbecoming an officer, the specification being that he had engaged in an altercation with another sergeant in the station house. At the hearing before the commissioners upon this charge, the relator was sworn upon the opening of the case, and examined by the commissioners. He was asked to state what occurred between him and Sergeant Allen, and his counsel interposed an objection “ on the ground "that no charge and no case has been made out against the accused, and until there is he need not answer.any questions, and, further, that he cannot be called upon to testify against himself until a case is made out against him, and witnesses called to sustain the charge.” To the overruling of the objection an exception was noted, and thereupon the relator proceeded to give his version of the affair. The objection, on its face, does not suggest an appeal to the constitutional privilege, but rather is directed to the order of the examination. The basis of his objection to his testifying, when sworn for that purpose, is that no case had been made out or any witnesses called to sustain the charge against him.

But the proceedings of the board of police commissioners are not governed by any particular rules of procedure, other than their own. The statute, chap. 180, Laws of 1884, authorizes the board to adopt rules for the examination, hearing and determination of charges against members of the force. It guards the rights of the accused member by providing that the charges shall be in writing and shall be investigated upon a reasonable notice to him. This power to regulate the manner of procedure in the trial of an accused member is, in the nature of things, reasonable, and strict conformity with the modes of procedure in courts of law is not expected, nor essential. The proceedings are disciplinary in their nature. For the maintenance of the police force in the most efficient state possible, especial powers are conferred upon the commissioners by the statute and great latitude is allowed them in the exercise of those powers. The tenure of the policeman’s

The legality of the trial does not turn upon the order in which the proofs are received, and if the accused is called upon, as was-the case here, and requested to state what occurred, although upon, the occasion when he was an actor, the examination is not invalidated for error merely because made at the commencement of .the case, rather than at some later stage. They may prefer to hear his statement and non constat but that they may accept his version of the affair. In this case, the record shows no denial of the charge by any plea; nor was the accused asked if he was guilty, or to answer any question which, of necessity, involved evidence-of his guilt. If he had refused to answer because his testimony might tend to criminate him, a very different question would be-presented for our consideration, and one which we are not required to determine at this time upon this record. His objection was in effect that the commissioners ought to make out a case against him before he should be compelled to testify. We see no propriety in that, and if the commissioners chose, in their investigation, to question the accused first about the circumstances of the case, there was no rule of law which militated against their doing so. It i§ iri their power to proceed, in their investigation of the facts, in any manner they choose, and if in the course of so doing the legal rights or privileges of the accused are violated,' he has the right to a review of the proceedings in the courts. But it-is necessary in order to make a ground for a reversal, other than that based on the conclusions from the proofs, that the attention of the commissioners should have been called to the error in the examination, or in the admission, or exclusion of evidence, by an objection which states the vice or illegality complained of.

For the reasons stated the order appealed from should be affirmed, with costs.

All concur.