People ex rel. Doherty v. Board of Police Commissioners

The relator Doherty insists that the evidence presented to the police commissioners was insufficient to sustain the findings of bribery made by them, and it becomes the duty of the court to inquire whether there was evidence tending to support the finding, and if there was, whether there was such a preponderance of proof against the existence of such fact as would make it the duty of the court to set aside the decision as against the weight of evidence ? In support of their determination, however, the court will indulge in the same presumptions that it would in support of a verdict of a jury. (People ex rel. Masterson v. French, 110 N. Y. 494 ; People ex rel. Hogan v. French, 119 id. 493 ; People ex rel. McAleer v. French, Id. 502 ; People ex rel. Coyle v. Martin, 142 id. 352; Code Civ. Proc. § 2140.)

■ The direct evidence of bribery consisted of the testimony of Augusta Tliurow, who for some three and one-half years prior to this trial had been the keeper of a house of ill-fame. Her story was, in. brief, that October 25, 1892, while the relator was captain of the precinct in which her house was situated, her premises were raided, and she was placed under arrest; that she pleaded guilty before the Special Sessions on November 2,1892; was fined twenty-five dollars, which she paid, and was then discharged. After her arrest, but before the November election, she went to the station house, accompanied by her husband, to see the captain. It was early evening, and when she reached the station house her husband remained outside, while she went in and there saw Captain Doherty alone, and the witness describes what took place as follows:

“The Witness: I says, £I have come to see you about my house; ’ he says, £ Have you been tried in Special Sessions ? ’ I said, ‘Yes.’ He says, ‘What-was you fined?’ I said, £25;’ he says, ‘ I told them not to push you hard ; ’ then after that I said that I

would like to run my lionse the same as everybody else did in the precinct, and he says,£ I will send my man Meehan around.’ I told the captain that I had done business with Bissert, and he said, ' Meehan is a nice fellow and you will certainly get along with him.’ ”

A few nights later Mrs. Thurow said there was a large procession passing, and she was out ip the street with some girls, when the wardman, Meehan, ran up to her and said: “ Wait until after election and we will see whether Tammany wins, and then you -will put out brooms and go right ahead in business, put brooms out of the door and sweep out the other party and go ahead in business.” The day after election she bought the brooms at Luhr’s grocery near by, fastened them openly on the door of her house, and then the house was opened again for the conduct of the illegal traffic which had led to its being raided two weeks before.

The night after the election she says that Meehan came into the hall of her house, and the girls having told her of his coming, she went to him in the hall, and Meehan said : “ I see you have commenced business, and I said'Yes, what is the damage,’ and he says §25, and I gave it to him.”

She told him to call between the sixth and tenth of the month, and it was between those dates in the following month of December that she next saw him, at -which time she handed him twenty-five dollars in front of the grocery store of Mr. Luhr. It was dark and no one was present, nor was anything said.

She never paid Meehan after that, and did not see him again except on the evening of January sixth, when she saw him standing in the station house in company with another man and four women as she passed into the captain’s room.

She states the facts which led up to her visit to the captain on that occasion as follows: The inmates of her house had on that day been celebrating the birthday of a girl known as Lillie Sanders, and in the midst of the celebration a tall man with very light or white hair, called at the place and asked to see the witness, and when she came to him he said : “ You want to go down to the house,- the captain wants to see you,” and told her to go in the evening between the hours of eight and nine. >

Between those hours, accompanied by her husband, she went to the station house. Her husband waited outside while she passed into

She wrote the name of Ilock, as directed by the captain, and put the money inside of the envelope, the captain placing it in a pigeon hole in his desk.

The next day, she says, she read in a newspaper that Meehan was no longer the wardman of the precinct; that he had been transferred January twenty-sixth to another district, and Ilock had been appointed precinct detective in 1ns stead.

In the early part of the following month of February .the witness was informed'by some of the inmates of her house that, during a brief absence, Ilock had called, so she went again to the office of the captain, and what took place she describes as follows: “ A. I says to him, ‘ Captain, did you send Hock,’ and he says, ‘ I could not send anybody else.’ I says, ‘ I was not there when he went into the hall, and the girls told me that Hock was there, so I knew it was time for the money and I brought it with me,’ and he gave me an envelope and I put it in and he put it in the pigeon hole. Q. Then you told him that the girls had told you that Hock had been there in your absence? A. Yes, sir. Q. Was anything else said after you had given him the money? A. Yes, sir. Q. What was it? A. I says, ‘I don’t know Ilock,’ but he says, ‘Well, the girls all know him; he has been long on the Bowery.’ I said that I did not know Hock ; that I did not know him personally.”

She testified to similar payments to Hock in June, July and August. In September she says that her husband came to her and reported that Hock was in the house, and she gave him the thirty dollars and he handed it to Hock in her presence.

In October and November she made similar payments, but in the middle of the latter month her house was raided for the second time, the first occasion having been a little over a year before. At the time of this raid she was arrested and brought before the Special Sessions, where she pleaded guilty and paid a fine of twenty-five dollars which was imposed. After her discharge she sought the wardman out again, and she says that he made a proposition to her, which involved the payment of a much larger amount for protection for the ensuing year. She in turn proposed the payment of a smaller sum than Hock had insisted upon, and requested him to submit to the captain her proposition, and Hock promised that he would come up again and let her know what the captain said. He did not come again, but she saw him shortly afterwards and inquired of him what the captain had to say about the arrangement she had proposed.

To this inquiry Hock made no answer, but said: “Well, First street is going to be closed up to-night, and you will have to lay low for thirty days or two months. You cannot do anything, because everything in First street and in the whole precinct is going to be all closed up. The Parkhurst people have been in to see the cap

But, urges the cormsel for the relators, this story of corruption by a keeper of a house of prostitution was uncorroborated, and, therefore, insufficient to support the findings of the police commissioners. If it was essential that the corroborative evidence should consist of statements of other witnesses who testify directly to the same effect, the position of counsel would be well taken. But there is another form of corroboration, which may be equally effectual, furnished by proof of surrounding circumstances and conditions which harmonize with and support, in essential particulars, the direct testimony, showing a connection between the narrative told and the opportunities, and permitting inferences as to liabilities.

In People v. Elliott( 106 N. Y. 288 ) the court considered whether the corroborative evidence in that case was sufficient to meet the requirements of section 899 of the Code of Criminal Procedure, forbidding a conviction upon the testimony of an accomplice, unless “ corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” There was no direct evidence connecting defendant with the crime other than that of the accomplice. The evidence offered for that purpose showed that the defendant had been previously convicted of a like crime; that he . and the accomplice were acquaintances and associates in the city of New York; that he was in Rochester, the place where the crime-was committed, and at Charlotte, a place near Rochester, some days prior to the commission of the crime, and registered at three hotels under an assumed name ; that the accomplice was with the defendant at Charlotte and was introduced by him to a third person ; when arrested, he asked the officer if any one had been arrested in Rochester; and, upon being asked why, 'lie said there must have been somebody who had done some talking, and, while denying that he had committed the crime, said he knew who did it. The court, in holding that there was sufficient corroboration to sustain the conviction, said : “ All these circumstances certainly have some tendency to corroborate the evidence of the accomplice, and they seem to us to satisfy the requirements of the section of the Criminal Code referred to. Each circumstance, taken by itself, is quite inconclm sive, but when considered together they certainly furnish some cor

In Moller v. Moller ( 115 N. Y. 166 ), which was an action for divorce, the defendant iuvoked the rule, established by the courts, that the uncorroborated evidence of prostitutes and private detectives is insufficient to break the bonds o'f matrimony.

The court, while approving the rule, said : “ But the illicit amours of faithless husbands aud wives are usually clandestine, and their wicked paths are hidden from public observation; and, hence, courts must not be duped, and they must take such evidence as the nature of the case permits, circumstantial, direct or positive, and bringing to bear upon it the experiences and observations of life, and thus weighing it with prudence and care, give effect to its just preponderance.” Other recent cases in which this general rule has been applied, are People v. Terwilliger ( 74 Hun, 310 , 313); People v. Hooghkerk ( 96 N. Y. 149 , 162); People v. Everhardt (104 id. 591); People v. Oogle (104 id. 511, 515); People v. Jaehne (103 id. 182); McCarthy v. McCarthy (143 id. 235).

Necessarily, there can be no direct evidence of the commission of an offense of the character of that of which the relator has been found guilty by the police commissioners, other than that furnished by one of the two parties to the transaction.

Receipts are not ordinarily given for bribe money, nor the presence of witnesses invited to see paid over the price of official dishonor.

But, while this is so, it is necessary that there should be some corroborating facts and circumstances harmonizing with the direct testimony which give to it such weight and strength as to induce belief in its truth.

Ye shall now inquire whether there were such corroborating facts as to authorize the police commissioners to find, as they did, that the story of the woman Tliurow was true. One of the pregnant facts seems to be thoroughly established, outside of the testimony of Mrs. Tliurow, and that is, that during the period for which she claims to have paid for police protection she was conducting a house of prostitution. It is equally as well established that the relator well knew that such was the fact. These facts are made to appear by evidence

“ Precinct No 14, )

“New York, June 23, 1892. \

“Werner A. Meyer, Esq.,

“16 First street.

“Sir — I wish to notify you that the premises known as No. 23 Second avenue, of which I understand you are the agent, is now being used for immoral purposes. I have received so many complaints about it that I have procured the necessary evidence against the place of Mrs. Thuro. I would advise you to take such action as would save the owner from being prosecuted.

“ Respectfully,

“MICHAEL DOHERTY,

“ Oa/ptain 14iA PrevmetJ

What action the agent took in the matter we are not informed, but certain it is that the captain took no steps in the direction of closing the house for nearly four months thereafter, when the premises were raided and Mrs. Thurow placed under arrest. She pleaded guilty to the charge of keeping a disorderly house, and [laid a fine of twenty-five dollars. Without referring to other testimony in the record on this subject, we may safely say that her testimony as to the character of her business, and the captain’s knowledge of it, prior to the time when she alleges she commenced to ¡iay for protection, is fully confirmed.

The krrests of women from her stoop; the captain’s letter to the agent; the raiding of the house under his direction; the arrest of

The fact that, immediately after her aruest, she was permitted to go on with her business in the same manner as before, and to continue it for so long a period of time, with knowledge on the part of the captain of the precinct that her business was being conducted as formerly, certainly tended in the direction of confirmation. Evidence was furnished by the relator which permits inferences of fact corroborative of material portions of the testimony of the witness Thurow. Some of his witnesses testified that, day after day, during the months from June to November, 1893, the captain, in the hearing of the sergeants and of the whole platoon, directed that special efforts be made for the suppression of this particular resort. And, notwithstanding the pretended vigilance, the house was not raided)nor was the woman Thurow arrested. Occasionally a woman from the house would be found on the outside soliciting, and in full view of the residents of the immediate neighborhood, and she was at once placed under arrest. But their arrest proved not to be a very serious annoyance for Mrs. Thurow, against whom the captain would have it believed the police were not only daily warned but whom they were commanded to bring to justice, for as promptly .as her women were arrested she was accepted as bondswoman by the sergeant in command.

It is certainly a fact of such moment as to entitle it to serious consideration that this woman should have been accepted as bonds-woman for the inmates of her house on the very days on which the captain was commanding vigilance on the part of his force, to the end that the woman Thurow and her illegitimate business should be driven from the precinct. The witness Thurow says that she arranged with the captain to have herself accepted as bondswoman

The testimony of the husband Thurow confirmed that of the witness in several respects. lie testified that, on one occasion, he saw her hand money to ITock, and, on another, that she handed the

He confirmed her statement that he accompanied her to the station house, and says that on one of the occasions he went into the private room and shook hands with the captain. Luhr, the proprietor of the neighboring grocery, knew of the character of the house, and testified that he sold Mrs. Tliurow brooms, and saw them fastened on the house. Of course, this corroborates her statement that she bought the brooms of Luhr, and took them to the house and fastened them upon the door.

The importance of this corroboration by Luhr is apparent, when it is brought to mind that only a few days before her house had been raided and she had been adjudged guilty of keeping a disorderly house.

Prom that time until the day after election she had been obliged to conduct her illicit business with some show of regard for outward appearances. How came it then that as soon as election day came and went she assumed that she no longer need kee|3 up an outward appearance of obeying the law, but could at once openly advertise her business upon the door of her house, by hanging thereon a cluster of brooms, which seems to have been regarded as an appropriate and effective sign ? She says that she took this step because just before election she was told by Wardman Meehan in effect that if the election turned out all right she could put out brooms and go right ahead in business. Now, if she did put out brooms the day after election, as Luhr swears she did, and with brooms bought from him, and within two weeks after her house had been raided and she arrested, convicted and fined, it constitutes an important fact for consideration in connection with her version of the conversation witli Meehan on that subject.

The records of the department confirm the witness’ statement that she did not see Meehan after January sixth, in the precinct, and that the papers the day following announced that he had been transferred and Hock appointed in his place. The witness Thurow’s statement that the captain, in passing the house, would frequently address remarks to the inmates, who were on the stoop, and order them inside of the house, is confirmed by the women West and Sanders. The last witness admitted that January 6, 1893, was her

We have not overlooked the fact that the records kept at the station house seem to demonstrate that the captain was absent between eight and nine o’clock of the evening of'January sixth;, and it follows, necessarily, that Mrs. Thurow could not have seen him between those hours. But the records do show that the captain was present between seven and eight o’clock on that evening. It is entirely possible, therefore, that she might have made an error of half an hour or an hour as to the time of the meeting, and still have been correct in all substantial respects. This error was a fact to be considered in connection with all the other facts and circumstances bearing upon her alleged visit to the captain ; but it was not a fact of such force and weight as to require of the commissioners that they wholly disregard all the other evidence relating to that meeting.

There are many other facts in this voluminous record which might be referred to in considering the question whether the record contains such evidence of a corroborative character as authorized the commissioners to consider it under the general rule expressed in People v. Elliott (supra): “ The court, before it should submit the case to the jury, should be satisfied that there is some corroborative evidence fairly tending to connect the defendant with the commission of the crime, and when there is, then it is for the jury to determine whether the corroboration is sufficient to satisfy them of the defendant’s guilt.”

We think the evidence to which we have referred fully supports the commissioners in the conclusion necessarily reached by them, that the facts offered in corroboration were of such a character as to be entitled to consideration in connection with the direct testimony of the witness Thurow.

It follows that if the corroborating facts and circumstances persuaded the commissioners that Mrs. Thurow’s testimony was true, their finding must stand, unless the evidence presented in behalf of the relator so preponderates against it as to make it the duty of the court to set aside the finding, because it is against the weight ,of evidence.

Hock, Meehan and the relator Doherty all specifically and positively denied the statements of Mrs. Thurow. But it cannot be said that their testimony was not in some degree discredited by the searching cross-examination to which they were severally subjected.

From the relator Doherty’s testimony it appears that he was appointed patrolman in December, 1870, at a salary of $1,200 a year ; promoted to the post of sergeant in July, 1887, when his salary was increased to $1,600 and later to $2,000, and was appointed captain in 1890 at a salary of $2,750. ITe was married in May, 1875; at the time of the trial had a family of eight children, the eldest of whom had attained the age of sixteen years; was then living at 735 Lexington avenue, which he purchased in December, 1893, for $18,000; $4,000 was paid down in cash at the time of purchase, and a mortgage for $14,000 on the property was paid by him within two months after the purchase. At the time of the trial he had other property in Mount Hope, for which he had paid $2,000 ; some real estate in Brooklyn, for which he had paid a like sum, and a balance to his credit, in the Farmers’ Loan and Trust Company, of between $5,000 and $6,000. "When asked to explain how he had been able to support so large a family and accumulate a fortune of $28,000 on a salary which was only $1,200 a year until 1887, and at no time more than $2,750, he said that in December, after he had been appointed sergeant, a broker named Gustave Tuttle came to him while he was on a patrol wagon and said: “ It is a good time now if a person had a few hundred dollars, it was a beautiful time in stocks.” I said — we entered into conversation about it, and he said, “ If a man had a couple of hundred dollars now he would make a big thing on it.” I said, “ I have a couple of hundred dollars and more than that if there is any chance, but don’t use my money and lose it.” "Well, he said, “I would not use your money if I did not think thei’e was a pretty sure thing. He

Further cross-examination discloses that he had never made inquiries as to the whereabouts of the broker’s office; had never received a statement as to the shares of stock which had been purchased or sold; did not think his broker kept any books of any kind, and knew of no writing of any nature which would substantiate the story of the dealings between the broker and himself. When asked for Mr. Tuttle’s address he said : “ I have not it just now; I think I can find him around the Sinclair House.” Apparently he did not find him, for Tuttle was not produced on the trial. As this money' came to him, according to his testimony', some time in June, 1881, inquiry was made as to its disposition, upon the assumption that such a large sum of money would likely be either invested or deposited in some financial institution. But, according to 'the witness’ testimony, the accommodating broker, who had made $22,000 for him on an investment of $200 during a period of five months, consented to borrow it of him and pay him interest at the rate of six per cent. The loan was made, according to the witness, and a note or notes, he did not remember which, without other security, was accepted. When the note or notes were payable he did not remember, but recalls that they were subsequently paid by his benefactor, the last payment being made some time in the latter part of 1892.

¥e are also of the opinion that there was such evidence in support of the finding that the relator was guilty of culpable neglect of duty, in permitting Mrs. Thurow’s house to be maintained for illegal and immoral ends from the 6th of January, 1893, to the month of November following, as to deny to this court the right to reverse it.

The relator was required to go to trial upon two days’notice, notwithstanding a request for an adjournment, and it is urged that the denial of the request was error. The statute provides that charges against a member of the department shall be investigated “ upon such reasonable notice to the member or members charged, and in such manner of procedure, practice, examination and investigation as the said board of police may, by rules and regulations, from time to time jirescribe.” (Chap. 410 of 1882, § 250, as amended by chap. 180, Laws 1884, § 1.)

And the one hundred and eighty-ninth rule of the department provides that service shall be made two days before the trial, which rule was observed in this case. The request of the relator, therefore, was for an adjournment after being regularly brought before the board upon such notice as the rules prescribed.

It is the established rule that where an administrative body of the character of the board of police commissioners is clothed with the disciplinary power of punishment or removal, the question of the reasonableness of the time allowed for explanation or preparation to meet the charges, rests to a great extent in the discretion of such

T3ie counsel for the relator strenuously insisted before the commissioners that the interests of his client required an adjournment to prepare for the hearing, while, on the other hand, the counsel for the People, with apparently equal earnestness, urged that there were public reasons why the trial should at once proceed, alleging, among other reasons, that the witnesses for the prosecution were under constant and vigilant snrveilance, and that a prompt inquiry was indispensable if one was to be prosecuted at all. In this situation the commissioners decided to refuse an adjournment, and this court is not at liberty to say, in the light of the facts before the commissioners, that they abused the discretion vested in them.

Relator’s further contention, that it was error for two of the commissioners to sit after they had been challenged by him and accused of having prejudged the case, and not intending to give the accused a fair trial, is without legal merit. The board of police commissioners consists of four members, and under the statute empowering them to investigate, take evidence and hear charges against members of the police force, and to render judgment dismissing, removing or suspending members of such force, it is provided that no such judgment or other determination shall be rendered “unless a majority of the board of police commissioners shall concur.” (§ 251 of said act of 1882, as amended by chap. 180 of 1884.) As the board has exclusive jurisdiction in such matters it would follow, if relator’s position be well taken, that he could secure himself in office by challenging two of the members of the board, as he attempted to do in this case, thus leaving the board without a majority of its members to render a judgment or make a determination.

It is not pretended that the commissioners whom he attempted to challenge had any direct interest in the controversy in a disqualifying sense, or that they were prohibited from sitting because of any statutory disability, and in such a case jurisdiction to hear and determine cannot be defeated by an expression of a litigant’s belief, that the judge or officer clothed with judicial functions will exercise the jurisdiction, by law conferred, wrongly through malice or corruption.

It should be further observed that, while separate and distinct acts were charged against the accused, they were nevertheless alleged to be in pursuance of a common scheme, to wit, the protection of a house of prostitution from the penalties of the law, through the action of officers charged with its enforcement. The price of protection was charged at one time to be paid to the captain in the name of his wardman; at another to the first wafdman, and at another to the second, but uniformly in pursuance of a common purpose and understanding. The result of the trial has shown that the witnesses on the part of the People were substantially the same in each case, and the proof adduced against one was in nearly all substantial respects like that offered against the others. There was no statute in existence giving the relators the right to a separate trial, and inasmuch as the ground work against all the relators was the same, the determination of the commissioners should not be reversed, unless there is some rule of law which entitled them to separate trials. The relator has not brought to our attention any authority asserting the existence of such a rule. ' On the other hand, authority is not wanting that the board which tried these relators is not restricted by all the limitations of a court at common law, for it is not a court, but an administrative body vested with disciplinary powers of punishment or removal, and authorized by the State to regulate its own practice and procedure.

In People ex rel. Weston v. MoCave ( 123 N. Y. 512 ), upon a hearing before the commissioners upon charges against a member of the force, the accused was sworn upon the opening pf the case,

Counsel at once objected that no case had been made out against the accused, and that he could not be called upon to testify against himself before a case had been made out against him. The objection was overruled, and the Court of Appeals in sustaining the rnling of the commissioners said: “ 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 1881) authorizes the board to adopt rules for the examination, healing 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 mode of procedure in courts of law is not expected nor essential. The proceedings are disciplinary in their nature. Eor the maintenance of the police force in the most efficient state possible, esjiecial powers are conferred upon the commissioners by the statute, and great latitude is allowed them in the exercise of these powers. The tenure of the policeman’s office must necessarily be dependent upon his implicit obedience to the disciplinary rules which his superiors establish, and though entitled to a trial upon any charge involving subjection to punishment, that trial is, practically, simply an examination of the matter, whereat the accused can be present and be heard in defense or excuse. Such an examination is not like a trial in a court of law, and for its legal correctness it is only required that no rule of law shall have been violated nor unwarrantable punishment be inflicted.”

So, in People ex rel. McCarthy v. The Board of Police ( 98 N. Y. 333 ) a patrolman was dismissed from the force upon evidence taken before one of the commissioners, sitting alone. Before a determination was had such commissioner went out of office, and thereafter the evidence was submitted to the four commissioners then in office, who made the determination complained of. The court held that no error was committed, and, in the course of its opinion, said: “ This was not a common-law trial, with the incidents and common-law rights pertaining to such a trial; nor, strictly speak

' By these cases it is determined that the commissioners who render the judgment need not he present when the evidence is taken ; that the board may call for the defense of an accused officer before bis accusers have been heard ; that such a departure from the rules of evidence as would be fatal in a criminal trial may not justify the court in reversing a sentence of the board of police commissioners, and it would seem to follow from the line of reasoning which led to these decisions that the commissioners were clothed with the discretionary power of determining whether these relators should he separately or jointly tried. We have discussed only'the relator Doherty’s case, but have necessarily reached the same conclusion in the cases of Hock and Meehan, the ground work of the evidence in each case being substantially alike.

The writs of certiorari should be dismissed in each case, with costs to the respondent.

Van Brunt, P. J., and Follett, J., concurred.

Writ dismissed in each case, with costs to the respondent.