For the prosecutor, Cole & Cole.
For the defendant, Anthony J. Siracusa.
Before Justices Trenchard, Daly and Donges.
The opinion of the court was delivered by
TRENCHARD, J. William Kerr, the prosecutor of this writ, was a member of the police department of Atlantic City and was dismissed by the director of public safety after conviction upon charges preferred and served and a hearing before the director.
The charges were: "That on December 4th, 1930, at about three-ten A.M., you, William Kerr, a patrolman of the Atlantic City police department, while off duty, appeared at the Lighthouse Garage, No. 17 North Vermont avenue, Atlantic City, New Jersey, along with one Raymond Day, a former member of the police department of Atlantic City, heretofore dismissed therefrom, and accosted Eugene Hopkins, an employe of said garage. That you threatened said Eugene Hopkins, stated that you were a 'stick-up man;' and further said to the said Eugene Hopkins: 'How much money have you got?' That you thereafter demanded gasoline for your automobile, without pay, and that your companion, in your presence, demanded five gallons of gasoline for your car; and that you finally drove your car from the garage after having received two gallons of gasoline, for which no payment was made. All of which is contrary to rule 14 (violation of any criminal law) to wit, attempting to rob the said Eugene Hopkins and forcing him to deliver merchandise without payment therefor; rule 16 (conduct unbecoming an officer and a
gentleman), and rule 17 (conduct subversive of good order and the discipline of the force); as provided in the rules and regulations for the government of the bureau of police of the city of Atlantic City, New Jersey, as adopted by the city commissioners, January 6th, 1916."
The prosecutor first contends that his conviction and dismissal should be set aside because "the proof submitted did not warrant a conviction."
The argument under this head is that the evidence does not support a finding that the prosecutor did and said the things imputed to him in the charges.
But we think that the testimony of Eugene Hopkins -- who made the initial complaint upon which the charges were based -- amply justified the findings.
Hopkins testified: " Q. Did you have any conversation with Officer Kerr on December 4th, last? A I did. Q. Tell us what happened there, what he said and what he did, if anything? A. Well, on December 4th, Thursday morning, about three o'clock, I was sitting in the office and a car drove up and blowed a horn, so I didn't get up right away, because I knowed all my customers was in and it is very seldom anybody comes for gas at that hour of the morning, but finally I got up and I opened the door. When I opened the door he came in. He looked at me and I looked at him, so he said, 'I'm a stick-up man.' Q. Who came in? A. Mr. Kerr. Q. This gentleman here? A. Yes, sir, right there. Q. Go ahead. A. He says, 'I'm a stick-up man.' He says, 'have you got any money?' I says, 'well, I've got a little.' I put my hand in may pocket and pulled out my gun. When I did that he said, 'I'm all right.' He said, 'I'm an Atlantic City officer,' and he showed me his badge. At that time Day came in. Q. Who is Day? A. I don't know who he is, but he was there and he came in, so after he came in I felt more satisfied, so ...