(dissenting.) The relator held the position of sergeant in the
police forcé, and was charged with conduct unbecoming an officer, the specification of which was that, on the 22d of May, 1889, he engaged in an altercation with Sergeant Myron Allen in the eighth precinct station-house at the termination of his tour of duty. Precisely what was meant by this charge that he had engaged in an altercation did not appear from the specification; but it was developed by the evidence taken upon the hearing that these two persons had engaged in a wrangle and wordy contest, followed by an .assault and battery committed by one upon the other, which was a criminal offense. The charge was in this manner extended and tried before the commissioners, and evidence was given which tended to establish the fact that the relator had committed an assault and battery upon Allen. When the hearing commenced the relator was called as a witness before the commissioner, who took the testimony, and it was objected in his behalf to his giving evidence until a case had been made against him; and, when he was asked what had occurred between himself and Sergeant Allen, the objection was made more specific, *767and the ground was taken that he could not be called upon to testify against himself until a case was made out against him, and witnesses called to sustain the charge. This was overruled, and an exception was taken on behalf of the relator, and he was then required to proceed, as he did, in giving his version of what had taken place between himself and Sergeant Allen, and his evidence disclosed the fact that personal violence had been made use of both by himself and by Allen; but his statement substantially was that the violence made use of by him was in his own defense. This, however, was unimportant, if he was not liable to be required to take the stand and swear as a witness in support of the charge which had been made against him.
The constitution of the state of New York, by section 6, art. 1, has declared that “no person shall be * * * compelled, in any criminal case, to be a witness against himself;” and the legality of the ruling made by the commissioner depends upon the construction which this prohibition of the constitution should receive. It is true that it was no part of the object of the proceedings to punish the relator for the commission of a criminal offense, but its object was, as it turned out to be, to prove him to have been guilty of what was a criminal offense, and for that reason to forfeit his office, and justify his removal. And, in case an adverse result should be reached under the charge made against the relator, then the consequences would be so serious to him as to be in the nature of punishment for a crime; for a forfeiture of his office, with its salary and prospective advantages by way of a final pension, was as serious to him as personal confinement and punishment could be; and this forfeiture depended, as the charge was construed and tried before the commissioners, upon proof of what the law maintains to be the commission of a criminal offense. It is true that it was not serious in its results, being no more than an assault and battery. But the constitution does not permit any discrimination in this respect between grave and trifling offenses. Its prohibition applies alike to all, that no person in a criminal case.shall be compelled to be a witness against himself.
A like provision is contained in the constitution of the United States, and its effect was discussed and considered in Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. Rep. 524. There the charge was, by way of information, and not of an indictment for a crime, that plate-glass had been imported into the United States in violation of the revenue laws, and was liable to forfeiture for that violation. A claim was made on behalf of the importer to this property based upon a denial of the violation of the revenue laws, and he was required to produce the invoices of the glass to support the proceedings taken against the property on behalf of the United States. This requirement was made by an order held at the time to be warranted by an act passed on the 22d of June, 1874, providing that in other than criminal proceedings the defendant or claimant might be required to produce his books, invoices, or papers in court as proofs relating to the subject-matter of the charge. Under this order or notice the claimant produced the invoices of the glass, and they were allowed, against his objection, to be proved in support of the prosecution upon the trial of the cause; and, after an adverse result to the claimant of the property, the case was taken to the supreme court of the United States, where it was held, inasmuch as the act charged in the information was a criminal act, although the proceedings had for its object no more than the forfeiture of the claimant’s property, that he could not be obliged to produce his books or papers to aid the United States in prosecuting the action against and for a forfeiture of his property. The decision was in part placed upon article 4 of the amendments to the constitution of the United States, declaring that the right of the people to be secured in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and it was held by the majority of the court that this part of the article had been violated by requiring the claimant to produce these papers, and their use upon the trial. So it was *768also held by the entire court that so much of article 5 as declared that no person shall be compelled in any criminal case to be a witness against himself had also been violated by obtaining and using the invoices in this manner. And this decision is a direct authority in support of the objection which was taken in behalf of the relator before the commissioner; for the proceedings there could result in no more than a forfeiture of the property itself against which it had been instituted. Still, as the violation of the revenue laws was of itself a crime, although not alleged to be such in the information, and as a crime was incapable of being tried in that form of proceeding, the court held that the claimant was entitled to the protection of this provision of the constitution; and for equal reason the same protection should have been afforded to this relator. For, while the object of the proceeding was to secure no more than the forfeiture of his office and his removal therefrom, yet the right to make that removal-depended, as the proceeding was carried on, upon the ability to establish the fact that the relator had committed an assault upon Sergeant Allen, which was a criminal offense. There is no substantial distinction between the application of the constitution as it was made in the case already mentioned and the application which should have been made of it in the case of the relator. If he had been guilty of an act justifying his removal from his office it was a criminal act, although not charged as such. While it was no part of . the object of the proceedings to inflict criminal punishment upon him, it was to forfeit his office, and all his prospective rights and privileges under it, because he had committed an act which in another mode of proceeding might result in his criminal punishment. The objection which was taken in his behalf should not have been overruled. He should not have been required to be a witness in behalf of the prosecution against him. The provision of the constitution is highly salutary, and it should be liberally applied to promote the result which it was designed to maintain. In this respect his constitutional right was violated, and the proceedings should be reversed.