The court did not err in overruling and denying the certiorari for any of the reasons assigned, as set forth in the opinion.
DECIDED NOVEMBER 9, 1945. The plaintiff in error, hereinafter called the plaintiff, was charged by M. A. Hornsby, chief of police of the City of Atlanta, with conduct unbecoming an officer, the plaintiff at the time being a captain in the police force of the City of Atlanta. The specific charges were: "You are hereby charged with conduct unbecoming an officer of the police department of the City of Atlanta, with failure to perform and neglect of your duty as a captain of said department, and with the violation of the rules of said department in the following particulars:
"1. On the night of December 21, 1942, you were the captain in charge of the evening watch, your tour of duty beginning at 4 p. m. and ending at 12 p. m. that night. At about 11 o'clock you received a call to go to the third floor of the station house from Lt. E. S. Elliott, who reported to you that turnkey Barge was under the influence of intoxicating liquors. Upon arrival on the third floor you found officer D. T. Barge to be under the influence of intoxicating liquors. . . You found him to be under the influence of intoxicating liquors, and neglecting your duty; you failed then and there to relieve him of duty and to *Page 163 take his equipment from him, but on the contrary and in violation of your clear duty as a captain in said department you permitted the said D. T. Barge to remain on duty at his post as a turnkey on the third floor of said police station.
"2. Upon arrival on the third floor of the police station on that night you found W. G. Scott, a turnkey from the fourth floor, on the third floor. Notwithstanding the fact that you knew that the said Scott was required on the fourth floor by the order of the chief of police and in order to fully protect the prisoners on the fourth floor, you permitted him to remain there until relieved, thereby leaving the fourth floor without adequate turnkey protection in neglect of your duty and in violation of the rules of said department.
"3. You improperly influenced an officer under your direction namely, Lt. E. S. Elliott, to incorrectly report the facts concerning Barge's condition, in that you directed that he submit the following in his report, which was not true in that said Barge should have been relieved from duty: `Although I could smell the odor of alcohol on officer Barge's breath, he was not intoxicated to the extent to be relieved from his duty. Captain Ginn ordered officer Scott to stay on the third floor with Barge for the remainder of his tour of duty.' Lieutenant E. S. Elliott knew that the said Barge was sufficiently under the influence of intoxicating liquors to be relieved from his duty, which you knew or should have known.
"You are notified that the foregoing charges will be heard by the police committee of general council at police station at 7:30 p. m., Thursday, January 28, 1943. M. A. Hornsby, chief of police."
The plaintiff demurred to the charges ore tenus, to the general effect that they were insufficient as a matter of law. The demurrers were overruled by the police committee of the general council of the City of Atlanta, the tribunal designated to pass upon the charges. To this judgment the plaintiff excepted pendente lite. The case proceeded to trial and testimony was introduced by both parties. Five of the six members of the committee conducted the trial, including the mayor of the City of Atlanta. It appears from the minutes of the committee that the five members who tried the plaintiff voted unanimously on roll call to find the plaintiff guilty of the charges against him, and on roll call the committee *Page 164 voted to reduce the plaintiff from the rank of captain to the rank of patrolman. The plaintiff obtained the writ of certiorari to the decision of the committee. The committee filed its answer thereto. To the answer thus filed certain exceptions were made by the plaintiff. The gist of the exceptions were that the defendants in the answer failed to point out any rule requiring the plaintiff to have removed patrolman Barge; that the answer failed to set forth any rules whatever governing the police department upon which the plaintiff could have been lawfully and legally convicted of a failure to perform his duty; and that the answer did not mention any rule which was claimed to have been violated by the plaintiff. A judge of the superior court passed an order requiring the defendants to certify and file copies of any applicable rule. All other exceptions were overruled. In response to this order the defendants filed in the office of the clerk of the superior court a copy of the Rules and Regulations of the Atlanta Police Department adopted by the police Committee of Council February 4, 1938. In the said rules so filed, rule No. 276 appears, as follows: "Any member of the police department who has been known to be under the influence of any intoxicating drink, such as beer, wine, gin, rum, whisky, any type of alcoholic drink, or any type of mixed alcoholic drink, either while on or off duty, will be dismissed from the force after a due trial, and proven guilty by the police committee of council." And rule No. 545 (which has fifty subsections), and the subsections applicable to this case are: "Any member of the police force may be punished by the police committee of council in its discretion, either by reprimand, suspension for not longer than 90 days, or by being reduced in rank, or by dismissal from the force, upon conviction of any one of the following offenses: 1. Drinking any kind of intoxicating alcoholic beverage, either on or off duty. 4. Neglect of duty or disobedience to orders. 5. Violations of any of the rules and regulations. 9. Conduct unbecoming an officer. 19. Any act contrary to the good order and discipline, or constituting neglect of duty, or a violation of the rules of the department, 25. The making of false official report. 36. Neglect to report any member of the department known to be guilty of violation of any rule, regulation, or order issued for the guidance of the department. 47. Untruthfulness. 50. Any act of omission or commission *Page 165 contrary to good order and discipline, or constituting a violation of any of the provisions of the rules and regulations of the department, or any of the general or special orders of the department."
The case proceeded to trial and both sides introduced testimony. Lt. Elliott, testifying for the defendants, stated that he discovered that policeman Barge was intoxicated from the use of alcoholic liquors while they both were on duty, and that he reported Barge to the plaintiff, who was his superior officer, and called the plaintiff to the scene of the duties of policeman Barge and the witness Elliott; that the witness then reported to the plaintiff the conduct of policeman Barge, and the plaintiff admitted then and there that he, the plaintiff, smelled some kind of alcoholic liquor on the breath of policeman Barge. The plaintiff called a turnkey (Scott) from the fourth floor, to stay with Barge on account of Barge's condition; and further that, when the witness Elliott came to make his report to the plaintiff, his superior officer, the plaintiff influenced him and required of him as a superior officer, to make a false report as to the condition of Barge, and this the witness Elliott did at the instance of the plaintiff because he was Elliott's superior officer.
The plaintiff testified, in part, that he was called by Lt. Elliott and that he smelled alcoholic liquors on the breath of policeman Barge; and further testified that he left turnkey Scott with Barge as a matter of precaution, since Barge had the odor of alcoholic liquors on his breath, but that he, the plaintiff, did so in the exercise of the discretion with which he was clothed as captain. The plaintiff also denied that he induced Lt. Elliott to make a false report. The good character of the plaintiff was established beyond question. We do not purport to set forth all of the testimony, but we have set forth certain material portions, and in the opinion will discuss these and other phases of the evidence.
The plaintiff urges his fifteen assignments of error, including his assignment of error on the overruling of his demurrer. We will discuss them. 1. (a) The court did not err in overruling the *Page 166 demurrer, as contained in special ground 8. The specifications of the charges were sufficient in law.
(b) Special ground 1 is to the general effect that the judgment rendered by the committee was not legally sufficient under rule No. 544. So much of that rule as is here pertinent reads: "All judgments of the police committee of council shall be in writing and duly entered upon the records." In our opinion the verdict and judgment rendered by the committee was a substantial compliance with the provisions of this rule. It appears that the substance of the verdict and judgment was unanimously reached and that it is on the record of the police committee. This assignment is without merit.
(c) Special grounds 2 and 3 are to the general effect that there was no evidence to support the finding of the committee. While on certain issues during the trial the evidence was in conflict, still there was sufficient legal testimony to sustain the finding. This ground does not demand a reversal.
(d) Special grounds 4 and 5 are to the effect that the plaintiff had violated no rule of the police department which had been previously adopted. These grounds are based on the contention that the attaching of rules to the amendment to the answer of the defendants was not a compliance with the order of the court, in that it contained all of the rules and regulations and did not point out and produce any rule applicable to the charges, and that neither the charges themselves nor the proof mentioned any rule which it was claimed that the plaintiff had violated. The response of the defendants to the order of the court was a substantial compliance with the court's order. The judge of the superior court who required the amendment accepted it as a compliance with his order and proceeded with the trial. This assignment does not require a reversal.
(e) Special ground 6 is to the effect that, when the plaintiff had a police officer to remain with Barge, this left the fourth floor of the jail unguarded; and that the positive evidence was that the fourth floor was fully guarded at all times, and this charge was without any evidence to support it. We think that the evidence sustains the position that there was a rule that two officers should at all times be on the fourth floor, but it is not clear that the plaintiff knew of such rule. There is some evidence to *Page 167 the effect that, being a captain, he did know or should have known of this requirement of the chief of police. We do not think that this assignment sets forth a reason for reversal.
(f) Special ground 7 assigns error under specification number 3 of the charges, to the effect that the plaintiff improperly influenced an officer to incorrectly report the facts concerning Barge's conduct. This assignment is based on the allegation that Elliott should not have been believed by the committee because he admitted, under oath, that he had falsified his report. This was a question addressed solely to the committee on the ground of the credibility of the witnesses, and is therefore without merit.
(g) Special ground 9 is to the effect that, over objections of the plaintiff, all of the witnesses were excluded from hearing the proceedings of the trial. It is the general and common practice in this State to exclude witnesses from the rooms during a trial, and no reason is urged here why this rule should not have been followed in the instant case, nor is any reason shown why the exclusion of the witnesses worked prejudice to the plaintiff. This assignment shows no reason for reversal.
(h) Special ground 10 is to the effect that Chief Hornsby, was permitted, over objection, to testify or read from matters occurring in a written report even though it was admitted that Chief Hornsby was not present at the tower on the night in question. It was objected that the testimony was hearsay and irrelevant. These reports were made by the officers of the police department to the chief of police and were in court and read by the committee. The chief also read from the report of the plaintiff. It is our opinion that this assignment sets forth no substantial error.
(i) Special ground 11 complains that, when the mayor asked Chief Hornsby what the plaintiff's duties were, it was admitted that they were provided in writing by the authority of the written law and rules of the police department. The rules and regulations of such department, on which the plaintiff was being tried, were in the record in response to the plaintiff's exceptions to the committee's answer to the certiorari. While, technically, it would perhaps have been more formal for the mayor to have required the writing itself rather than the interpretation or statement from the chief of police, still we can not see any substantial error in this assignment. *Page 168
(j) Special grounds 12, 13, and 15 assign error because of the admission, over objections of the plaintiff, of a transcript of the evidence in the trial of policeman Barge. In our opinion, this record was improperly admitted for the reason that the plaintiff was not then on trial, and the record further shows that he was not present at the Barge trial. However, the committee sitting as an administrative judicial tribunal or a quasi-judicial tribunal passing on the facts as well as the law, they are presumed to have been capable of segregating the competent from the incompetent testimony. The transcript of the record in the Barge case does not appear in the instant record, and the oral references made by the witnesses concerning it, although illegal, do not require a reversal. Conceding that the record in the instant case does show the admission of incompetent testimony — aside from the incompetent testimony admitted, there was ample competent and legal testimony to sustain the finding of the committee. This court dealt fully with this question inHeath v. Atlanta, 67 Ga. App. 85 (19 S.E.2d 746), in the fourth division. See also Scott v. Hester, 72 Ga. App. 889 (35 S.E.2d 389).
(k) Special ground 14 is based on the contention that one of the city attorneys was present and conferring and advising the committee over objections of the plaintiff's attorney. It is contended that an ordinance of the City of Atlanta prohibits the city attorney from prosecuting police officers before the police committee without permission of the general council of the City of Atlanta. It does not appear from the record that the attorney did more than consult with and advise the committee. He asked no questions of the witnesses and took no other part in the prosecution save to confer with and advise the committee. We are of the opinion that this ground does not show any sufficient prejudice to the plaintiff requiring a new trial. We again refer to the case of Heath v. Atlanta, supra, particularly to the effect that error during the progress of a trial such as the instant case does not necessarily require a reversal unless such error is prejudicial to the extent of demanding a reversal.
From the whole record, which consists of over 200 pages, it is our view that the judge of the superior court did not err in overruling and denying the certiorari for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur. *Page 169