Burns v. Clayton

Decision Date19 November 1960
Docket NumberNo. 17716,17716
Citation237 S.C. 316,117 S.E.2d 300
CourtSouth Carolina Supreme Court
PartiesHoward L. BURNS and Robert E. Vandiver, Complainants, v. F. Turner CLAYTON, Respondent. Howard L. BURNS and Robert E. Vandiver, Complainants, v. S. S. TISON, Jr., Respondent. Howard L. BURNS and Robert E. Vandiver, Complainants, v. L. C. WANNAMAKER, Respondent.

Daniel R. McLeod, Atty. Gen., James S. Verner, and William F. Austin, Asst. Attys. Gen., for complainants.

James P. Mozingo, III, A. Lee Chandler, Benny R. Greer, Darlington, for F. Turner Clayton.

Gedney M. Howe, Jr., J. C. Hare, Charleston, S. S. Tison, Sr., Bennettsville, for S. S. Tison, Jr.

P. H. McEachin, Florence, for L. C. Wannamaker.

PER CURIAM.

After hearings pursuant to our Rule on Disciplinary Procedure, the Board of Commissioners on Grievances and Discipline filed with this court its final certified report finding each of the respondents guilty of professional misconduct and recommending that the respondents Clayton and Tison be permanently disbarred and the respondent Wannamaker publicly reprimanded. The matter is now before us on that report and the respondents' returns to our orders requiring them to show cause, respectively, why the report of the Board should not be confirmed and disciplinary orders issued accordingly.

Respondents are members of the bar of South Carolina, separately engaged in the practice of law in this state. Complainants, members of the Board of Commissioners on Grievances and Discipline appointed by its Chairman for the purpose of investigation and prosecution pursuant to Section 31 of the Rule on Disciplinary Procedure, instituted a separate proceeding against each respondent; and by agreement the three proceedings were heard together before a panel of three members of the Board appointed by its Chairman pursuant to Section 9 of the Rule. The panel, after lengthy hearings, found each of the respondents guilty of misconduct warranting disbarment, and so reported to the Board. Thereafter, pursuant to an order of this court, the Board furnished to each respondent a copy of the hearing panel's findings of fact and recommendations, and accorded to them and their counsel a full hearing prior to its action thereon.

The voluminous record, which we have carefully examined, convincingly reveals the following facts:

On the afternoon of Sunday, November 24, 1957, at a point on the Ruby-Hartsville highway in Chesterfield County near Knight's store and filling station, a collision occurred between an automobile owned and driven by one Hazel Miles and a truck, the property of one J. L. Mills, driven by Joel Mills. Hazel Miles and the five other occupants of his automobile were killed. On the same day, the respondent Clayton was employed as attorney on behalf of Oscar Miles to represent the estates and statutory beneficiaries of his two children killed in the accident, and to seek recovery for their alleged wrongful deaths, said employment to be on a contingent basis that was subsequently fixed at forty per cent of any recovery. Thereafter Mr. Clayton was employed, on the same basis, to represent the estates and the statutory beneficiaries of the four other occupants of the car. On the evening of the same day, as the result of information received in his investigation of the collision, Mr. Clayton went to the home of one Ray Tyner, near Knight's store. Following a conversation with Tyner, he returned next morning, met Tyner and three other young men, Laverne, Robert and McDonald Gooden, whom Tyner had assembled, and he then took the four of them to his office, where he had each of them execute in affidavit form a statement as to the facts surrounding the collision and the manner of its occurrence. These statements, which purported to place the full blame upon the driver of the truck, who was the only surviving eyewitness, were false in that each represented the person making it as having been an eyewitness, whereas in truth and fact he was not. They were procured by Mr. Clayton through the assistance of Tyner; and the evidence fully justifies the finding of the Board that Mr. Clayton had knowledge of their falsity. Upon their having made these statements Mr. Clayton paid in cash twenty dollars each to Tyner and the three Goodens. Additionally, for his services in making his false statement, in procuring the Goodens to make similar ones, and in keeping them committed to such statements and prepared to testify accordingly, he agreed to pay Tyner ten per cent of whatever fee he, Clayton, might receive for his representation of the estates and the statutory beneficiaries of the deceased persons in their claims arising out of the fatal collision.

Tyner was an uneducated man, thirty-three years of age at the time of the hearing before the panel Commissioners, unable to read or write except to sign his name, egotistical, self-important, garrulous, avaricious and unscrupulous. That something of his character was or should have been known to Mr. Clayton at the time of their interviews in November, 1957, is suggested by the fact that in May of that year Mr. Clayton, representing Tyner's wife in an action to annul their marriage, had obtained in the court of common pleas for Chesterfield County a decree of annulment reciting that the marriage had been obtained 'by misrepresentation and/or fraud of the defendant.' Laverne Gooden, aged twenty, Robert, aged twenty-one, and McDonald Gooden, aged eighteen, were young men of little education, their schooling having ended with the ninth grade.

Shortly after having executed his statement before mentioned, Laverne Gooden told his father of its falsity; and later he went with his father to the sheriff of Chesterfield County (who died prior to the hearing of this matter), and made like report to him.

Some two weeks after the accident, an insurance carrier covering the liability of the truck owner retained the law firm of Spruill and Harris, of Cheraw, to represent its interest in the matter. About a week thereafter, as the result of a report made to his firm by an adjuster for the insurance company, M. Spruill requested of the Governor that an agent of State Law Enforcement Division (SLED) be sent into the area to make an investigation; and during the week before Christmas, 1957, Officer McKinnan of SLED came to Mr. Spruill's office and conferred with him. Early in January, 1958, as the result of a statement made to him by the sheriff, Mr. Spruill requested that Officer McKinnan be sent back to investigate further.

On January 6, 1958, Officer McKinnan obtained from Ray Tyner an affidavit to the effect that he had not seen the accident occur, being at the time engaged with Laverne Gooden in work on the latter's car between Tyner's house and Knight's store; that on the evening of November 24, 1957, Mr. Clayton had come to his home and asked him to give a statement concerning the accident, saying that he wanted a statement showing Tyner to have been an eyewitness, and that he would pay Tyner well for it; that he did not give Mr. Clayton a statement that night, but 'saw the other boy so we decided that we would give him a statement since he was willing to pay us'; that next morning Mr. Clayton returned to Tyner's house and took Tyner and the three Goodens to his office, where he fixed up the statements and had them typewritten; that at this meeting Mr. Clayton insisted that they lower their estimate of the automobile's speed as it passed Knight's store; and that after they had signed the statements he gave each of them twenty dollars and told them that they would receive more later.

On the same day, January 6, 1958, Officer McKinnan obtained from Robert and McDonald Gooden affidavits to the effect that at Mr. Clayton's request they, together with Laverne Gooden and Ray Tyner, had gone with him to his office on November 25, 1957, and had there made statements as to what they knew of the accident; and that after their statements had been typewritten Mr. Clayton had given to each of them twenty dollars, saying that it was for their time consumed in coming to Cheraw with him. The statements given by Robert and McDonald Gooden to Officer McKinnan made no reference to the truth or falsity of the statements that they had given to Mr. Clayton on November 25. But before the hearing panel Robert testified that he had not seen the accident happen, he and McDonald Gooden being at the time of its occurrence inside the Knight store; that he had heard the crash, but had paid no particular attention to it until someone outside hollered that a truck had turned over up the road. With regard to the conference in Mr. Clayton's office on November 25, he testified that he told Mr. Clayton that he had not seen the collision, but that Mr. Clayton dictated the statements as he wanted them, and gave each of the boys a copy, telling each to read and remember it. Similarly, McDonald Gooden testified that he was inside the store and neither saw the collision nor heard the crash; and that at the conference on November 25 he had told Mr. Clayton that he had not seen the accident.

On the same day, January 6, 1958, Officer McKinnan obtained from Laverne Gooden an affidavit, a copy of which came into Mr. Clayton's possession under circumstances hereinafter related and was introduced in evidence in the course of the cross-examination of Mr. Clayton at the panel hearing. In this affidavit Laverne Gooden averred that the falsity of the statement that he had signed in Mr. Clayton's office on November 25 was revealed to him when, upon his return home, his father read to him the copy that Mr. Clayton had given him; and that he went on December 22 to the sheriff and told him that the statement was wrong. Further, that at the conference on November 25 Mr. Clayton, who had made a sketch of the vicinity of the accident, had wanted him to indicate thereon that his car was at a point where in fact it was not, and that he had...

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  • State v. Ard
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    • South Carolina Supreme Court
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    ...have been made before the declarant's "relation to the cause." Jolly v. State, 314 S.C. 17, 443 S.E.2d 566 (1994); Burns v. Clayton, 237 S.C. 316, 117 S.E.2d 300 (1960). Appellant's prior consistent statement to Swerling was not admissible under Rule 801(d)(1)(B), SCRE. First, although appe......
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    ...of life or liberty"). Although we have held that a disciplinary proceeding is not criminal in nature, see Burns v. Clayton, 237 S.C. 316, 331, 117 S.E.2d 300, 307 (1960), we have not previously addressed whether the Double Jeopardy Clause is implicated when a lawyer is both disciplined and ......
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