App. Div.] First Department, November, 1913. were binding upon the public, he had no title to the position, and it was the duty of the defendants upon learning the facts to dispense with his services and appoint a person who possessed the qualifications required by law. In People ex rel. * Kopp v. French (102 N. Y. 583, 586) Judge EARL said: 'Kopp was not legally a member of the police force. He was inėligible; the police commissioners had no right under the statute to appoint him; and when it came to their knowledge that he had been convicted of a crime and was, therefore, ineligible to the office, they had the right summarily to vacate his appointment, discharge him from the police force and refuse longer to recognize him as a member thereof.' In People ex rel. Krushinsky v. Martin (36 N. Y. Suppl. 851, 853*) the court said: 'The provisions of the law requiring the formulation of written charges and service of the same could only apply to one who had been legally constituted a member of the force. As against the relator such a course was unnecessary for the reason that the proceedings of the board of police were in the nature of an investigation to ascertain whether or not he was legally a member of the force. The relator never * * was legally a member of the force because, being appointed in violation of the civil service laws, his appointment was void ab initio and conferred no rights upon the appointee."" In the matter at bar, relator, having been reinstated in violation of the express provisions of law, was not legally a member of the force. It was, therefore, the duty of the commissioner, when advised of this fact, to summarily dismiss him. The writ of mandamus issues only when the petitioner has established a clear legal right to the relief prayed. The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements. INGRAHAM, P. J., SCOTT, DOWLING and HOTCHKISS, JJ., concurred. Order affirmed, with ten dollars costs and disbursements. *91 Hun, 425.-[REP. First Department, November, 1913. [Vol. 158. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MEYER KOPPMAN, Appellant. First Department, November 7, 1913. Crime - criminally receiving stolen property-evidence of good character of defendant - charge. Where, upon the trial of a defendant for criminally receiving stolen property, the only instruction by the court as to evidence of the good character of the defendant was that "it is to be given by the jury its just and proper weight and no more," it was reversible error for the court to refuse the request of the defendant to charge "that good reputation of itself may create a reasonable doubt, where otherwise no doubt would exist." APPEAL by the defendant, Meyer Koppman, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against him on the 21st day of May, 1913, convicting him of the crime of criminally receiving stolen property. Samuel Wechsler, for the appellant. Robert C. Taylor of counsel [Stanley L. Richter with him on the brief], Charles S. Whitman, District Attorney, for the respondent. CLARKE, J.: There is but one question we feel called upon to discuss upon this appeal. The defendant, upon his trial, produced three witnesses who testified to his good character. In its charge the learned court instructed the jury as follows: "On the part of the defendant you will consider the testimony of the defendant himself, consider the testimony of Harry Stone, Nicholas Grunfast and Max Geldman, called here as character witnesses. On the subject of the character evidence, I ought to say to you that such testimony is always received in criminal trials. It is relevant to the issue, and the jury must consider it in connection with all the evidence in the case. It is to be given by the jury its just and proper weight and no more. The question involved here is not whether Meyer Koppman is a man of good reputation or of good character. The question * * * App. Div.] First Department, November, 1913. is whether he committed this crime, and upon that subject you may consider the evidence of his previous reputation. A man may have a good reputation and the good favor of the community as to his integrity and honesty, and yet commit a crime. If he does commit a crime the fact that he has a good character and the favor of the community does not absolve him from the consequences of his act. Consider the testimony of good character, therefore, in its proper light, give it its proper relation upon the subject whether the defendant committed this offense which is laid at his door." Thereupon counsel for the defendant stated: "I ask your Honor to charge the jury that good reputation of itself may create a reasonable doubt where otherwise no doubt would exist. The court: I decline to charge further than I have already charged upon that subject;" to which an exception was taken. The learned court had charged nothing upon that subject. He had stated: "It is to be given by the jury its just and proper weight and no more." The request by the defendant's counsel was propounded for the purpose of having the jury instructed what, under the law, that just and proper weight was which they were instructed to give to it, and this the court declined to do. People v. Bonier (179 N. Y. 315) was a murder case. Judge VANN said: "A careful review of the testimony has led us to the conclusion that the verdict was not against the weight of evidence, and that it should not be disturbed unless some error, duly raised by exception, was committed during the trial of such a nature as to give rise to the presumption that the defendant suffered prejudice therefrom. Evidence was given by witnesses called in behalf of the defendant tending to show that his general reputation from the speech of people, in the community where he had lived for many years, was good and that they had never heard anything against him. No evidence was given in behalf of the People in relation to his reputation or character. In charging the jury upon this subject the court said: 'You will take into account the evidence of these two witnesses who testified in behalf of the defendant with reference to his character. They said they had known him, one of them eight months or nine months, First Department, November, 1913. * * * [Vol. 158. and made an investigation of his character and standing, or his reputation perhaps would be better, and so far as he learned it was good and he so reported. The other gentleman had known him some time, and so far as he knew, his reputation was good. You have a right to take that into account. He was at liberty to swear six witnesses. He was under no obligation to do so, but he might have done so. It is proper for you to take into account the fact that these witnesses have testified that he was a person of good reputation in the community where he lived, for the purpose of discrediting the weight and probability of the circumstances sought to be established, and in addition, to create a probability of innocence. No matter what his standing might have been in the community where he lived in the past, he might yet be guilty. So, you will observe it is proper to be taken into account by you as bearing upon the probability as to whether or not he is guilty of the crime charged in the indictment.' The following extract from the record sets forth three consecutive requests to charge presented by the counsel for defendant, the action of the court thereon and an exception taken to the final ruling: 'Mr. Murphy: I ask your Honor to charge that in the absence of any testimony upon the subject of character the presumption is that the defendant's character is good. The Court: That is true. Mr. Murphy: I ask your Honor to charge that there is testimony in this case, and that if the jury believe it, believe the testimony of these witnesses upon the subject of the defendant's character, that that is proof conclusive of good character. The Court: Yes, on that subject I should think so. I will charge it. Mr. Murphy: Now, I ask your Honor to charge the jury that the presumption which arises as to the defendant's good character, both from the failure to attack it and from the testimony given, may of itself be sufficient to raise a reasonable doubt as to the defendant's guilt. The Court: That I deny. The jury should consider the evidence of good character for the purposes mentioned. Mr. Murphy: I except.' After reviewing Cancemi v. People (16 N. Y. 501, 506); Remsen v. People (43 id. 6) and People v. Elliott (163 id. 11) Judge VANN continued: "It is, therefore, the law that App. Div.] First Department, November, 1913. * * * evidence of good character may of itself create a reasonable doubt, when without it none would exist, and that upon the request of the accused the jury should be told that such evidence, in the exercise of their sound judgment, may be sufficient to warrant an acquittal, even if the rest of the evidence should otherwise appear conclusive. The instruction asked was of great moment to the defendant, confronted, as he was, with a strong case against him. Whether his character was good was for the jury to decide, but they were not permitted to give the full effect to that fact, if they found it, which the law authorizes. An innocent man may be so surrounded by adverse circumstances that his only reliance is his naked denial, which ordinarily has but little weight, and proof of good character, which may have great weight. We think that the charge, as a whole, tended to mislead the jury as to the effect which they might give to such evidence. The body of the charge did not cover the point, as the jury were there told that they might consider good character for two purposes, first, to discredit the weight and probability of the circumstances sought to be established; and, second, to create a probability of innocence. In response to a distinct request for an instruction that good character may of itself be sufficient to raise a reasonable doubt, the court denied the proposition of law embraced in the request, but charged that the jury should consider the evidence for the purposes mentioned, apparently meaning the two distinct purposes mentioned eo nomine in the body of the charge. No attempt was made to instruct the jury as to the weight which good character may have, independent of any other evidence, and this was the main chance of the defendant. * * What the defendant asked and should have had was an instruction that such evidence of itself might raise a reasonable doubt. He did not get it. The jury decided the case without knowing the law. The effort to have them told what the law was upon a vital point met with a denial. They went to the jury room not only uninformed, but, as they may have understood the words of the court, misinformed as to their power. We cannot say judicially that they would have found as they did if they had been properly instructed and, hence, we cannot overlook the error under sec |