Chreste v. Commonwealth

• Decision Date: 11 December 1917
• Citation: 198 S.W. 929,178 Ky. 311
• Parties: CHRESTE v. COMMONWEALTH. [a1]
• Court: Kentucky Court of Appeals

198 S.W. 929

178 Ky. 311

CHRESTE v. COMMONWEALTH. ^[a1]

Court of Appeals of Kentucky.

December 11, 1917

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Robert A. Chreste was disbarred from the practice of law for professional misconduct, and he appeals. Affirmed.

Thum &amp Roy, of Louisville, for appellant.

A Scott Bullitt, Hugh B. Fleece, and Elmer C. Underwood, all of Louisville, for the Commonwealth.

THOMAS J.

This is the second appeal of this case, the opinion in the first one appearing in 171 Ky. 77, 186 S.W. 919. There will be found in that opinion a detailed and elaborate history of the case which we will not repeat here, except such as may be necessary to an understanding of the proceedings in the trial court after the return of the case and of the questions presented and discussed on this appeal. Briefly, it appears that the appellant, Chreste, was a practicing attorney in the city of Louisville, and a man of about 32 years of age. He was graduated from the University of Michigan at Ann Arbor, and had been practicing law some 7 or 8 years. The judge of the Jefferson circuit court, common pleas division No. 1, issued four rules against Chreste for him to show cause, if any he had, why his name should not be stricken from the roll of attorneys because of certain conduct with which he was charged in each of the rules, the first one charging him, in substance, with having in his possession testimony material to a litigant in a case with which he was not connected, and which he proposed to divulge to the litigant's attorney only upon condition that he, Chreste, was given a fee in the case, and that he afterwards divulged the testimony, but not until he was promised a fee, which he afterward obtained. The second rule charged against him with having employed one Sherrick to secure clients, and agreed to and did pay Sherrick for such services $25 per month, his car fare, and 25 per cent. of all attorney's fees collected from clients secured by Sherrick, and that this employment lasted for a period of three months. The third one charged him with having employed one Saunders to perform the same duties as Sherrick, except that Saunders was to receive $8 per week, with an unlimited expense account, and that he instructed Saunders, while soliciting employment of Chreste, to say to persons of the Catholic religion that he (Saunders) represented O'Doherty & Yonts, and to say to others that he represented Edwards, Ogden & Peak, those two firms being lawyers of extensive practice and known ability in the city of Louisville. The fourth rule charged Chreste with having endeavored to obstruct the processes of the court by intimidating and thereby preventing Saunders from appearing and responding to a rule which had been issued against him for having procured certain witnesses to give false testimony in a certain damage suit pending in the court. These rules were issued on December 1, 1914, and were made returnable on December 4, following. The first opinion, supra, gives in detail the succeeding proceedings, showing the final disposition of the case, and fully sets forth the reason why the judgment of disbarment rendered therein under the peculiar facts presented was reversed. After the judgment first appealed from was rendered there was offered in the lower court, in connection with a motion to set that judgment aside, an amended response to the rules which set forth the appellant's defense in more finished form and with greater detail. Upon the return of the case after the filing of the mandate from this court, appellant filed his affidavit as authorized by section 968 of the Kentucky Statutes, and entered motion that the presiding judge of the court vacate the bench, which motion was overruled, and appellant then filed motion for a change of venue, which was also overruled. A trial of the issues made by the response in each of the rules was had before a jury, and it returned a verdict finding appellant guilty of the charges preferred by rules numbers one, two and three, but found him not guilty of the charges preferred in rule number four. Upon this verdict the court entered judgment disbarring appellant as an attorney at law, and to reverse it he prosecutes this appeal.

But four errors are relied on for a reversal, they being: (1) That the court should have sustained appellant's motion for the judge to vacate the bench; (2) that the judgment disbarring appellant was too severe and not authorized by the facts found by the verdict of the jury; (3) that the court erred in sustaining the motion for a continuance made by the commonwealth founded upon an affidavit of the county attorney, showing the absence of a material witness for the commonwealth and his testimony, which affidavit appellant, in order to prevent a continuance, agreed might be read as the testimony of the absent witness; and (4) error of the court in instructing the jury.

Section 968, supra, of the Kentucky Statutes gives the litigant the right to substitute a special judge to try his case in lieu of the regular one when the litigant "shall file with the clerk of the court his affidavit that the judge will not afford him a fair and impartial trial, or will not impartially decide an application for a change of venue." But this court has, in a long line of decisions, construed the statute so as to require the litigant seeking to take advantage of it to go further in his affidavit than the general language of the statute, and to set forth facts showing the foundation of his belief that the judge will not afford him a fair and impartial trial, which facts must not be the mere conclusions of the affiant, but must be such as to necessarily show prejudice against affiant by the judge, and sufficient to prevent him from fairly and impartially trying the case. German Insurance Co. v. Landram, 88 Ky. 433, 11 S.W. 367, 592, 10 Ky. Law Rep. 1039; Sparks v. Colson, 109 Ky. 711, 60 S.W. 540, 22 Ky. Law Rep. 1369; Schmidt v. Mitchell, 101 Ky. 570, 41 S.W. 929, 19 Ky. Law Rep. 763, 72 Am.St.Rep. 427; Erwin v. Benton, 120 Ky. 536, 87 S.W. 291, 27 Ky. Law Rep. 909, 9 Ann.Cas. 264; Boreing v. Wilson, 128 Ky. 570, 108 S.W. 914, 33 Ky. Law Rep. 14; Hargis v. Marcum, 103 S.W. 346, 31 Ky. Law Rep. 795; Ky. Journal Co. v. Gaines, 139 Ky. 747, 110 S.W. 268, 33 Ky. Law Rep. 402; Givens v. Crawshaw, 55 S.W. 905, 21 Ky. Law Rep. 1618; White v. Jouett, 147 Ky. 197, 144 S.W. 55; Hargis v. Commonwealth, 135 Ky. 578, 123 S.W. 239; and many other cases which might be cited.

A few short excerpts from some of the opinions will be sufficient to illustrate the application of the statute as interpreted by this court.

In the opinion in the Landram Case, supra, we find it stated that:

"The fact or facts upon which the belief that the judge will not give the litigant a fair trial should and must be stated in the affidavit, and they must be of such a character as shall prevent the judge from properly presiding in the case. We do not mean to say the statement for the ground of belief must establish, if true, that the judge is a corrupt official, but we do mean to adjudge that such causes, and those of a like character, as have been noticed, are not sufficient, and there must be some fact stated, such as personal hostility of such a character, if that ground is relied on, as would prevent an official of personal integrity from presiding in the case."

The causes "of a like character, as have been noticed," mentioned in the quotation just made, refer to illustrative causes made by the court in that case, which were that the judge may have, on previous occasions, made adverse rulings against the affiant, and he may have entertained certain views upon legal questions presented in the case, all of which we learn from a former part of the opinion, when the court said:

"He [the judge] may have sustained a demurrer to a pleading in the case, or in some other similar case that if adhered to, must prove fatal to the case of affiant. * * * He may refuse to continue a case when the litigant or his counsel believes the grounds were sufficient. In all such cases the litigant, for such reasons, may conceive that injustice will be done him, and therefore he is ready to make the affidavit, when it is apparent that not one of the grounds mentioned, or those of a like character, are sufficient to require the judge to vacate the bench."

In the case of Sparks v. Colson, supra, this court upon this point said:

"But it is not enough to merely assert the fact of personal hostility or partiality. He [affiant] must state the facts which he alleges constitute the state of feeling complained of. We have held that the truthfulness of the facts stated cannot be questioned by the judge (Vance v. Field, 89 Ky. 178, 12 S.W. 190 ); therefore it is all the more important that the facts, and not the litigant's conclusions or suspicions, be set forth, that this court may have the opportunity of testing their sufficiency if the trial judge should hold them insufficient."

In the case of Hargis v. Commonwealth, supra, the affidavit disclosed that the presiding judge the motion sought to remove had formerly been commonwealth's attorney of the district, and belonged to a different political faction from the one to which the affiant belonged, and that affiant and his father had always worked against the election of the judge while he was running for the office of commonwealth's attorney, and that upon occasions, after having been elected and while filling that office, he prosecuted affiant's father for different offenses with which he was charged, as well as other members of the political faction to which the father belonged, and that while the judge was commonwealth's attorney the killing for...