The oral evidence in this case, taken upon the trial, is quoted in full in the opinion of Judge LOUGHRAN for reversal. Conviction for the commission of crime under the laws of this State still requires evidence to support it. Here, defendant should not be convicted under the statute (Labor Law, art. 5, § 167) unless the evidence established beyond reasonable doubt that defendant "shall have been on duty continuously for ten hours or at separate intervals for ten (10) hours in the aggregate or less in any fourteen consecutive hours including time for meals" and that he continued on duty thereafter without a layoff of at least eight consecutive hours. There is no evidence of the time of day when the arrest was made. Giving full effect to everything stated in the time card, defendant went on duty at 2:30 A.M., May 10, 1937, was released from duty from 6:30 A.M. to 7 A.M. and for one-half hour for lunch and entered New York State at 1 P.M. The officer testified that he had no knowledge or information of the number of hours that defendant was operating the truck except that furnished by the time card. If taken for all that it is worth, the evidence thus establishes that defendant continued work after a total elapsed time on duty of ten and one-half hours during which he was off duty or released from duty one hour. On this feature of the statute, there was no evidence of its violation.
Notwithstanding the fact that for failure of proof the conviction here cannot be sustained, the point is to be *Page 421 avoided apparently by this court on the ground that appellant's attorney did not mention it in his brief. That ground was specifically urged at the close of the trial for discharge of the defendant and dismissal of the information. The rule is invariable that the court will not consider the constitutional question if the case may be decided upon other grounds (Burton v. United States, 196 U.S. 283, 295.) The case may be decided on other grounds here, but as the majority of the court are to decide otherwise, we pass to the constitutional question.
It is asserted here and has been asserted from the time of the defendant's arrest that the admission of the time card was in violation of the defendant's constitutional rights and in that connection it is urged that the defendant was compelled to be a witness against himself in violation of article 1, section 6, of the New York State Constitution. The statute required the defendant to keep and carry on the vehicle records showing the day and hour when and the place where he went on and was released from duty and failure to keep such records or to keep such records correctly is made a crime. The statute provides that such records shall be exhibited to any State policeman or peace officer who shall demand to see them and that failure to produce the records upon demand shall be presumptive evidence of a violation relating to the keeping of such records. The statute also provides that in any prosecution for violation of any of the provisions of the section, such records shall be prima facie evidence of the truth of the contents thereof. Here, the officer demanded the production of the records which were kept by the defendant and he was compelled, on penalty of being prosecuted for a criminal offense, to produce them and upon production they constitute the only evidence upon which conviction has been had. There can be no doubt that the defendant was thereby compelled to be a witness against himself in clear violation of the constitutional provision, under which he might seek protection (People ex rel. Ferguson v. Reardon, 197 N.Y. 236). The decision in the Ferguson case has in no manner *Page 422 been weakened or modified by the decision in People v. Defore (242 N.Y. 13). It was cited with approval in Bean v. Flint (204 N.Y. 153, 167) and People ex rel. Woronoff v. Mallon (222 N.Y. 456, 466) and also in Internal Revenue Agent v.Sullivan (287 Fed. Rep. 138, 141) and is controlling on the question here involved.
An effort is made to avoid this conclusion on the ground that the crime charged is the continuance on duty after the expiration of the continuous ten hours of duty, but such a distinction is purely fictitious and untenable. There are two elements necessary to be established to convict the defendant of the crime charged.First, he must have been on continuous duty for a period of ten consecutive hours or for fourteen hours, taking into consideration the time off for lunch, etc., and, second, he must have remained on duty at the expiration of that time. The first element of the case, according to the provisions of the statute, is to be established by the record of the defendant, which he was compelled to produce.
The order appealed from should be affirmed.
CRANE, Ch. J., LEHMAN, HUBBS and FINCH, JJ., concur with LOUGHRAN, J.; RIPPEY, J., dissents in opinion; O'BRIEN, J., taking no part.
Ordered accordingly. *Page 423