For the prosecutors, Frank A. Boettner and Thomas M. Kane.
For the respondents, Charles Handler.
Before Justices Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. On September 11th, 1932, respondent Cavanaugh, a patrolman in the uniformed police department of the city of Newark, appointed on December 16th, 1931, entered a public cafe or saloon located in that municipality, and conducted by one Edward McCaffrey. He was "off duty." His purpose, so he said, was to obtain a box of candy won in a raffle or drawing conducted on the saloon premises. He tarried, however, with tragic results. Herbert McCaffrey,
a brother of the proprietor and an old friend of Cavanaugh, was there. They indulged in some good natured raillery, in the course of which Herbert asked Cavanaugh to "have a drink." The latter insists that he was sober when he entered the premises, and there drank but a portion of a glass of beer. He wore a holster containing his revolver. This was a departmental requirement when he was "off duty." Herbert expressed a desire to see the revolver. Cavanaugh testified: "Rather than have him take it out, as he was fooling around, I figured I would take it out and show it to him. I took it out, and broke it. When you break it, the bullets are ejected automatically. I broke it open, but one must have been caught. It stayed in the gun. Then I went to hand it to him, with the pressure of his hand and mine, the trigger went off." The bullet remaining in the revolver was discharged. It mortally wounded Herbert; his death occurred on the following day.
Of the decedent, Cavanaugh said: "I would not say he was drunk; he had a few beers." He testified further: "Q. When you broke the gun, did you tilt it, and did the bullets fall out? A. Five fell out, and one stayed in. Q. Did you know at the time you put the bullets in your pocket that only five fell out? A. No; I did not. I thought they all fell out. * * * Q. As you went to show it to him, what did he do? A. He went to take the gun. From the pressure of his hand coming against mine and against the trigger, he went to take the gun, and we heard a report." On cross-examination, he admitted that the following version of the occurrence, given in the form of a written statement shortly after it took place, was correct: "Herbert then asked me to see the gun. I took my service revolver out from the holster, broke it open and took the bullets out. I didn't examine the revolver to see if all the bullets were out, but I put the bullets in my coat pocket and didn't count them. I closed my revolver, placed my finger on the trigger, placed my revolver against Herbie's breast, and I accidently pulled the trigger. The revolver went off." Edward McCaffrey, a friendly witness, testified thus: "My brother was joshing
Cavanaugh about why he should carry his gun on his day off. So, Cavanaugh says, 'it is the rule of the department. We must carry it at all times.' Then this brother of mine says to him, 'I don't think you would know what to do with that gun if you had to use it.' Cavanaugh takes the gun out of his holster and breaks it open; takes some of the bullets out of it. I mean, he thought he had them all out. He puts the bullets in his pocket; points the gun at my brother, and says, 'I will show you how we would use this on tough guys,' he says. He pulls the trigger four or five times. All of a sudden, I heard a shot." Although Cavanaugh insists that he was not at the time indulging in intoxicants, there is evidence to show that he was in the saloon for an hour or more before the fatal occurrence.
It indisputably appears that Cavanaugh was not, in the use of the gun, actuated by malice; the sole question litigated below was whether he was thereby guilty of conduct unbecoming an officer and gentleman, and neglect of duty, in violation of departmental rules and regulations. The specification was that "without just cause or provocation," he drew his revolver and handled it "in such a careless and negligent manner that it was fired and a bullet discharged therefrom," causing death. The departmental head found him guilty of the offenses charged, and dismissed him from the service. The civil service commission, on appeal, directed that Cavanaugh be "returned to duty, as soon as practicable after this date on his final and complete waiver of any claim to compensation for any or part of the period during which he has not been on active duty." This judgment was predicated upon findings that "the whole unfortunate affair was purely accidental," and that Cavanaugh "should be penalized in order to impress upon him the seriousness of his part in this unfortunate accident and it is willing that he shall be returned to duty, ...