New-York tribune., 1902-05-08
DLl.NOND CONVICTION GOOD
APPELLATE DIVISION AFFIRNIS JUDG-
MENT AGAINST POLICE CAPTAIN.

Albany. May The judgment Of conviction in
the Supreme Court Albany County. Of Thomas
J. Diamond, a former police captain Of New-i ork
I CITY for violating his duty a public officer In
permitting a disordcrly house conducted by Lena
Schmidt to remain open. was to-day affirmed by
the Appellate Division OF the Supreme Court 1hird
Department. Diamond was hncd $1,000, which ne
paid and as a result OF the conviction was dis
missed from the police force. In his appeal whi'h
was argued at the last term Of the court he asked
that the Judgment Of conviction he set aside. ana
that a trial he granted. Tho court unahl-
mously sustained the proceedings IN the lower
/ court.
Justice Kellogg handed down an elaborate opin-
ion reviewing the case in detail II" held 10 b' un-
founded the claim Of the appellant that IN" refusal
Of the lower court to permit him to inspect the
grand jury minutes i'm violation Of his statu-
tory rights. the court "ithin it's discretion I'm
such refusal he said Regarding the claim that
the lower errel in permitting IN" trial with
out a preliminary examination before n magistrate
the Justice ruled that the grand jury Is court OF
original inquiry. ana nowhere hy word OF INFER
ence is the scope Of inquiry limited To cases where
a preliminary examination has bcca held hefor" a
magistrate" The opinion furtho' said
The contention that the court erred I'm refusing 70
oTc aGTs% IF' dEsn6e }q5E 10 nnfonded The two Wit
nesses for people testified to SO many pertinent
knowledge OF the character of the house, viii II
witnesses. and weT" not that me lnTy thlsi1
5hs. 5RGHsh it was the testimony of admitted PTos''
Their testimony was denied hy none. and that
defendant wfuly omitted TO take the steps II Wa
duty to take. . repTcSS the maintenance" ot q
house Of prostitution. is Hbuudantly SHOWN ii'
did not arrest the proprietor. neither did h" diS-
close to any superior or to any rn"sistr"tc' or %
| District Attorney. any Of tho facts ot "hlrh
he was possessed. l. stead OF using the facts 10
repress crime Of maintaining house OF pr"Nil-
tuition he apparently rrprcsSed tho facts. He kept
them to himself boarded them. concealed th"tn
/ from all Off eiaIs who had power 20 suppress
| the crime even II defendant had uot-hc did more,
he weekly reported to his superlors that this
house not house Of prostitution, when he
knew that il
orderly house. was referred to the defendant who
replied that ''he could obtain evidence Of any
violation Of th' law thereat' This. from the testi
rnony the jurors had a right to hclicv" false ana
they also had right to believe the weekly reports
he false TIN ouGh his own inspection of the
. house. his conversations with the proprietor. the
officers he kept posted In front OF the house day
and night. the Officers in citizens clothes who so
/ frequently visited the house. the defendant was
presumably possessed Of facts sufficient to prov"
tenton OF his counsel that his duty did not extend
the suppression of houses of prostitution in his
precinct. because the maintenance OF such a house
is crime under the Penal code and not cnumerat-
ed as crime in the charter, Is not tcnable.
The duty impnred by the charter Is o enforce and
city. This certariy includes the Penal Code
The crime Of which Lena Schmidt was guilty was
not technical offence. II required no spying -
discover It II fragrant. open notorious pub
chinery for punishment at their command Obvi-
/ Ously this a case for regulation, but a
/ crime for suppressed.
The judgment of conviction Is affirmed.