Commonwealth ex rel. Harris v. Porter

• Decision Date: 01 February 1935
• Citation: 257 Ky. 563
• Parties: Commonwealth ex rel. Harris v. Porter.
• Court: United States State Supreme Court — District of Kentucky

257 Ky. 563

Commonwealth ex rel. Harris v. Porter.

Court of Appeals of Kentucky.

Decided February 1, 1935.

Pardon. — Pardon issued to attorney after his disbarment for conviction of felony held not to restore his right to practice law (Ky. Stats. Supp. 1933, sec. 97).

Appeal from Boyd Circuit Court.

E. POE HARRIS, Commonwealth's Attorney, for appellant.

SAM SPARKS and J.B. ADAMSON for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Reversing.

This is the second appeal of this case; the first one appearing in 242 Ky. 561, 46 S.W. (2d) 1096, 1098, the opinion in which sets out the facts up to that time and our conclusions of law arising therefrom. The appellee and respondent below, James A. Porter, was a practicing attorney in Ashland, Ky., and in December, 1928, he was indicted in the United States District Court for the Eastern District of Kentucky, in which he was charged with a felony created by an act of Congress. He pleaded guilty, which was followed by a judgment of conviction, but its execution was suspended. Following the conviction and on the 27th day of September, 1930, the commonwealth, on relation of the Honorable E. Poe Harris, commonwealth's attorney for the Thirty-second judicial circuit court, district of Kentucky, filed an information in the Boyd circuit court against respondent setting out his conviction under the federal statute and praying that he be disbarred from the practice of law in the courts of this commonwealth, and which proceeding was based on section 97 of Carroll's Kentucky Statutes, as set out in Baldwin's 1933 Supplement thereto, but which was omitted from the 1930 Edition of the Statutes because the editor thereof was of the opinion that it had been repealed by sections 98a-1 to and including 98a-11 in the 1930 Edition of the Statutes and which was an enactment passed in 1918 and being chapter 131, p. 559, of the acts of that year. However, in our first opinion in this case supra, we held to the contrary, and determined that section 97, which was enacted long before the 1918 act, was not repealed by the latter, and was still in full force and effect. That section says: "No person convicted of treason or felony shall be permitted to practice [law] in any court as counsel or attorney-at-law."

At the hearing of the information, a stipulation was filed indicating that perhaps respondent was not technically guilty of the offense for which he was indicted, notwithstanding he appeared and pleaded guilty thereto. The court concluded that it was competent to investigate on a hearing of this kind the guilt or innocence of respondent, and which, of course, involved a re-investigation of the crime for which he was convicted. It furthermore held that the stipulation was sufficient to convince the court that respondent was innocent of that crime and for which reason the proceedings were dismissed. The commonwealth appealed to this court, resulting in a reversal of the judgment in the case supra. In that opinion we expressly held, after discussing many cases, both foreign and domestic, that the judgment of conviction as long as it was in force and effect was conclusive of respondent's guilt, and that it was incompetent to go behind it to prove the contrary; our final conclusion being thus stated: "Under the facts of this case the trial court erred in going behind the record of conviction while the judgment stood unimpeached and inquiring into the question of appellee's [Porter's] guilt."

Upon the filing of the mandate in the Boyd circuit court, judgment was entered disbarring appellant pursuant to the prayer therefor of the information. Some nine months thereafter, and while the latter judgment was in full force and effect and on February 17, 1933, President Hoover granted a pardon to respondent of his federal court conviction, upon the ground that he "has been conducting himself in a law-abiding manner," which was followed by the statement that the pardon was granted "for the purpose of restoring his civil rights," but not because the President was convinced that he was innocent of the crime. However, under the facts of this case, we do not attach any importance to such statements in the pardon.

Following its obtention, respondent filed this action in the Boyd circuit court seeking a new trial of the original disbarment proceedings to be followed by...