People ex rel. Walsh v. MacLean

Daniels, J.,

(dissenting.) The charge made against the relator was that, on

the 20th of October, 1889, he drew his pistol on a citizen, and fired a shot, not in self-defense, but in violation of rule 199; and it was a violation of that rule, as contained in the case, for a member of the force while on duty to draw his pistol not in self-defense on a citizen. The relator, by his counsel, admitted that he shot John Coleman in the abdomen on the morning of the 20th of October, 1889, 'and the other testimony which was given proved the fact to be that Coleman was found near a pillar of the elevated railroad, and stated that he had been shot, and was thereupon taken to the station-house, and finally sent to the hospital, where he was at the time of the trial before the commissioners. In exoneration of the relator it was stated that he was following and watching two other persons, who had aroused his suspicions, and discharged his pistol in the air to attract the attention of other officers, and to bring them to his assistance. Ho other pistol shot was heard at or near the time when Coleman received this wound, and no pretense was made that it had been received in any other manner than from the pistol in the hand, of the relator, and whether it had been discharged in the manner mentioned by him was a question which addressed itself to the consideration and decision of the commissioners, and as to that fact their-decision was adverse to him, and it may very well have been so; for, if the relator had merely discharged the pistol in the air to attract attention, as it was stated he did by himself, it is not reasonable to suppose that the bullet would have taken effect upon the person of Coleman, as it appears to have done. The more rational and probable conclusion is that the pistol was pointed at Coleman, and discharged when pointed in that manner; for in no other way does it appear that the ball could have taken the effect upon .his person which it did. The probabilities of the case all point to this use of the weapon by the relator, and not to that mentioned by himself, as a witness on the hearing; and, with this probability before them, the commissioners were justified in concluding that the shot had not been made in the air, as the relator stated it was, but that it was the result of pointing the pistol at the person who was struck by the bullet. The evidence in this manner disclosed supported the conclusion reached by the commissioners and their decision should be affirmed.