Bartos v. United States District Court

• Citation: 19 F.2d 722
• Decision Date: 17 May 1927
• Docket Number: No. 7561.,7561.
• Parties: BARTOS v. UNITED STATES DISTRICT COURT FOR DISTRICT OF NEBRASKA et al.
• Court: U.S. Court of Appeals — Eighth Circuit

19 F.2d 722 (1927)

BARTOS v. UNITED STATES DISTRICT COURT FOR DISTRICT OF NEBRASKA et al.

No. 7561.

Circuit Court of Appeals, Eighth Circuit.

May 17, 1927.

Leonard A. Flansburg and Herbert W. Baird, both of Lincoln, Neb., for plaintiff in error.

Don W. Stewart, of Lincoln, Neb. (Lester C. Dibble, of Lincoln, Neb., on the brief), for defendants in error.

Before LEWIS and KENYON, Circuit Judges, and TRIEBER, District Judge.

LEWIS, Circuit Judge.

The plaintiff in error pleaded guilty to the charge of making beer in his home for the use of himself and family. When guests were present they were offered a glass and it was usually served in this way at meals, and only in his home. There were no sales, no traffic of any kind. On his plea punishment was imposed. He was a member of the Bar in good standing and had a substantial practice in both Federal and State courts. Having suffered the punishment imposed, he was cited to show cause why he should not be disbarred from practice in the United States District Court for the District of Nebraska; and after a hearing the court, on the facts stated, disbarred him for a period of three years. No claim was made that he had ever been guilty of malpractice or unprofessional conduct, or that he had ever been accused or charged with any other offense.

The learned District Judge based his order of disbarment on two grounds, as appears in a written opinion which is found in 13 F.(2d) 138: First, the commission of the offense charged involved moral turpitude; and, second, it was a violation of the oath taken on admission to practice, — to support the Constitution and laws of the United States. Both grounds are challenged here. If either ground is well taken the order should be affirmed, but if both are untenable it should be reversed and vacated.

We take it to be a sound principle that the court has no regulatory power over the private life of members of the Bar, and that it cannot exclude them from practice for acts in that capacity unless they be such as to clearly demonstrate their unfitness to longer enjoy the privileges of the profession. Neither ground on which the order was made has any tendency to show malpractice or unprofessional conduct on the part of Bartos; nor was it found, nor is it expressly claimed here, that his act is convincing or persuasive that he will be derelict in duty to the court, to clients or to other members of the Bar. His future dereliction is implicated from the grounds on which the order was made.

It was not a felony (Criminal Code, § 335 Comp. St. § 10509), and hence not infamous. Nor was the act malum in se, but malum prohibitum; and yet it is found that its commission involved moral turpitude. This is an old phrase in the law, and its meaning is demonstrated in cases in which a prior conviction is attempted to be proven for the purpose of impeaching a witness. It is subjective in meaning and restricted to those who commit the gravest offenses, — felonies, infamous crimes, those that are malum in se. They disclose the inherent character, that he is of depraved mind, and because thereof he is not worthy of belief even under oath. Crimes of a heinous nature have always been considered by laymen and lawyers alike as involving moral turpitude, regardless of legislative action on the subject. A thief is a debased man, he has no moral character. The fact that a statute may classify his acts as grand and petit larceny, and not punish the latter with imprisonment and declare it to be only a misdemeanor, does not destroy the fact that theft, whether it be grand or petit larceny involves moral turpitude. It is malum in se, and so the consensus of opinion — statute or no statute — deduces from the commission of crimes malum in se the conclusion that the perpetrator is depraved in mind and is without moral character, because, forsooth, his very act involves moral turpitude. Ex parte Wilson, 114 U. S. 417, 5 S. Ct. 935, 29 L. Ed. 89; In re Kirby (D. C.) 84 F. 606; Glover v. United States (C. C. A.) 147 F. 426, 429, 430, 8 Ann. Cas. 1184; Neal v. United States (C. C. A.) 1 F.(2d) 637; Haussener v. United States (C. C. A.) 4 F.(2d) 884, 887; Williams v. United States (C. C. A.) 3 F.(2d) 129. In State v. Taylor, 98 Mo. 240, 244, 11 S. W. 570, 571, it is said:

"The general moral character of one who has been convicted of an infamous crime may well be considered so degraded as that but little credit ought to be given to his testimony, but it is not necessarily so of one who has been convicted of a mere misdemeanor, or the violation of a city ordinance. * * * Conviction of an infamous crime tends to show a depraved and corrupt nature, a bad general moral character. Conviction of a penal offense not infamous may be consistent with a character generally good or bad."

In that case it was held error to admit in evidence records of convictions for violations of a city ordinance prohibiting frequenting of bawdy houses, for the purpose of impeaching a witness.

In Redway v. Gray, 31 Vt. 292, the slanderous words accused the plaintiff of stealing property of less value than $7.00, and it was contended they were not actionable per se. The court said:

"They impute an infamous crime, involving moral turpitude, * * * the true reason why assaults, and breaches of the peace, and violations of the liquor law are not such offenses as make words charging them actionable, is because they do not necessarily and in a legal sense imply moral turpitude. The offense of larceny does necessarily imply it, and there is no distinction between grand and petit larceny in this respect."

See, also, In re Henry, 15 Idaho, 755, 99 P. 1054, 21 L. R. A. (N. S.) 207. That court again said in McGovern v. Smith, 75 Vt. 104, 53 A. 326:

"The offense of selling intoxicating liquor does not, in a legal sense, involve moral turpitude."

In Spring Co. v. Knowlton, 103 U. S. 49, 26 L. Ed. 347, it was contended that a contract was against public policy, illegal and void. The court, at page 57, said:

"It is to be observed that the making of the illegal contract was malum prohibitum and not malum in se. There is no moral turpitude in such a contract."

The same principle is restated in Parkersburg v. Brown, 106 U. S. 487, 503, 1 S. Ct. 442, 27 L. Ed 238. In Fort v. City of Brinkley, 87 Ark. 400, 112 S. W. 1084, a physician was convicted of unlawfully selling intoxicating liquors. An Arkansas statute provided that whenever a physician is convicted of an offense involving moral turpitude his license to practice medicine and surgery shall be revoked as an additional penalty. The court entered the order of revocation and Fort appealed. The Supreme court quoted from Black on Intoxicating Liquors, as follows:

"Offenses against the liquor laws, such as illegal sales of intoxicants, keeping liquor in possession with the intent to dispose of it unlawfully, illegally transporting liquor from place to place, and the like, are statutory crimes, not being punishable at common law. They are also of the description mala prohibita, as there is no inherent immorality in such acts, and their illegality lies only in the fact of their being positively prohibited."

And then, after quoting the definition of the phrase: "Moral turpitude is defined to be an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen or to society in general," the court said:

"Moral turpitude implies something immoral in itself, regardless of the fact whether it is punishable by law. The doing of the act itself, and not its prohibition by statute, fixes the moral turpitude."

The trial court in its opinion cites a number of cases, not noted above, in which it was held that violations of prohibitory liquor laws do not involve moral turpitude, hence convictions therefor could not be shown for the purpose of impeaching a witness. But it seemed to give much weight to a line of cases, sporadic and unsound we think, which say that the phrase moral turpitude has no definite meaning, that it shifts and fluctuates in keeping with changes in the moral standards of a people or country. This is doubtless so when viewed solely as a question of morals and long periods of time are taken into consideration. But when private rights are being adjudicated they are determined by rules of the civil law, not the moral; and so the civil law fixes a definite meaning to the phrase. It says the commission of crimes malum in se, infamous offenses and those classed as felonies involve moral turpitude, — none others. The phrase is centuries old, it has a definite meaning. The court in Fort's Case, supra, said:

"It seems clearly deducible from the above-cited authorities that the words `moral turpitude' had a positive and fixed meaning at common law, and that the illegal sale of intoxicating liquors, not being an offense punishable at common law, does not come within the definition of a crime involving moral turpitude."

The same principle of the civil law, which must guide us, was expressed by Justice Robb in his dissent in Rudolph v. United States, 55 App. D. C. 362, 6 F.(2d) 487, 40 A. L. R. 1042. In that case Rudolph, a retired police officer, had been convicted of a violation of the National Prohibition Act (Comp. St. § 10138¼ et seq.). The majority opinion, in reaching the conclusion that Rudolph's act involved moral turpitude, was forced to cast aside a fundamental differentiation. It contains this:

"We are not much concerned with the distinction sought to be made between crimes malum in se and those which are merely malum prohibitum."

To this Justice Robb convincingly made reply:

"The offense charged against the appellee being merely malum prohibitum, and Congress having specifically declared it to be nothing more than a mere misdemeanor, and fixed a penalty as for a misdemeanor, I do not think it is for this Court to give to the offense a classification inconsistent with that evidently intended by Con...