(dissenting.) I cannot think that this case comes within the general rule laid down for our guidance in People v. French, 110 N. Y. 494, 18 N. E. Rep. 133. It is an extreme case of misfortune, but not, as I humbly conceive, of guilt. Hogan frankly acknowledged that he was intoxicated, but intoxication is not necessarily, and under all circumstances, guilty. The surroundings may always be considered. We cannot, it is true, under the authority referred to, review the excuse given for a guilty act, but we may look at the attendant circumstances to ascertain whether the act was in fact guilt. Here the charge was conduct unbecoming an officer, in that the patrolman was so much intoxicated as to be unfit for duty. Would such a charge be established by proof that a brave and faithful officer, fainting under injuries received in the performance of his duty, had been given a stimulant by a physician, or even by a lay passer-by, and that he had been affected thereby ? Would the intoxication thus caused be deemed conduct unbecoming an officer, and would the medical or Samaritan incident be treated as a mere excuse to palliate proved guilt? It seems to me not. The officer’s condition would, of course, be prima facie evidence that it was produced by a guilty act. But surely a man may possibly come under the influence of liquor by an innocent act. In the present case the uncontradicted testimony pointed conclusively to Hogan’s innocence—not as to the effect, but as to the cause. He had no appetite for liquor. The drink in question was not even a passing indulgence. It was resorted to to sustain nature, and to enable this sick, famished, and worn-out officer to continue the struggle which even his sergeant had humanely relieved him from. Where he procured the stimulant, whether it was at an apothecary’s or at a dram-shop, does not appear. It was certainly, however, but a single glass, and it affected him almost immediately. The determination that this isolated act of physical need was conduct unbecoming an officer, and should be punished by his practical destruction, ought not, in my judgment, to be sustained. It was an unjust, ruthless, and cruel sentence; just such a sentence as subdivision 5, § 2140, Code Civil Proc., was designed to give us authority to remedy. The proceedings of the commissioners should be reversed, and the relator reinstated.