In re Bartos

• Decision Date: 02 June 1926
• Citation: 13 F.2d 138
• Parties: In re BARTOS.
• Court: U.S. District Court — Panama Canal Zone

13 F.2d 138 (1926)

In re BARTOS.

District Court, D. Nebraska, Lincoln Division.

June 2, 1926.

Lester C. Dibble, Asst. U. S. Dist. Atty., and Don W. Stewart, both of Lincoln, Neb., for prosecutor.

Leonard A. Flansburg and Herbert W. Baird, both of Lincoln, Neb., for defendant.

MUNGER, District Judge.

An order was heretofore entered in this court, reciting a conviction of the respondent in this court of the offense of the unlawful manufacture of intoxicating liquor, in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.), and directing the respondent to show cause why he should not be disbarred from practicing as an attorney of this court. A return to the rule was made, and upon a trial of the issues, it appeared from the pleadings and evidence that the respondent is of the age of 48 years, and was admitted to the bar of this court in 1902. An information was filed in this court on November 14, 1925, charging the respondent with several offenses against the National Prohibition Act. On March 15, 1926, the respondent pleaded guilty to the charge made in the first count of the information, and was sentenced to imprisonment in a county jail for a period of 10 days.

The charge made in the first count of the information was the unlawful manufacture on September 23, 1925, of intoxicating liquor, to wit, of 700 quarts of beer fit for beverage purposes, containing more than one-half of 1 per cent. of alcohol by volume; such manufacture having been made without a permit from the Commissioner of Internal Revenue authorizing it to be made. The respondent testified that he had manufactured the liquor in the basement of his residence at Wilber, Neb., intending it for the use of himself and of his family and of guests in his home. He testified, also, that he believed it was the policy of officers of the United States and of the state to confine their efforts to the prosecution of persons known as bootleggers, and not to molest persons making intoxicating liquor for their own use; but the respondent admitted that he knew he was violating the law in manufacturing this product.

Under these circumstances, should an order be made disbarring the respondent from practicing as an attorney of this court? Of the nature of such a proceeding the Supreme Court of the United States has said:

"The proceeding is not for the purpose of punishment, but for the purpose of preserving the courts of justice from the official administration of persons unfit to practice in them. Undoubtedly the power is one that ought always to be exercised with great caution and ought never to be exercised, except in clear cases of misconduct, which affect the standing and character of the party as an attorney. But, when such a case is shown to exist, the courts ought not to hesitate, from sympathy for the individual, to protect themselves from scandal and contempt, and the public from prejudice, by removing grossly improper persons from participation in the administration of the laws. The power to do this is a rightful one, and, when exercised in proper cases, is no violation of any constitutional provision." Ex parte Wall, 107 U. S. 265, 2 S. Ct. 569, 27 L. Ed. 552.

The same court, in the case of Selling v. Radford, 243 U. S. 46, 37 S. Ct. 377, 61 L. Ed. 585, Ann. Cas. 1917D, 569, referring to the same subject, said:

"While, moreover, it is true that the two conditions, membership of the bar of the court of last resort of a state and fair private and professional character, are prerequisites to admission here, there is a wide difference in the nature and effect of the two requirements. * * * The second exaction, on the contrary, is not ephemeral, and its influence is not exhausted, when the admission based upon it is secured, since the continued possession of a fair private and professional character is essential to the right to be a member of this bar. It follows, therefore, that the personality of the member and these inherent and prerequisite qualifications for membership of this bar are indivisible; that is, inseparable. They must, if they exist, follow the personality of one who is a member of the bar, and hence their loss by wrongful personal and professional conduct, wherever committed, operates everywhere, and must in the nature of things furnish adequate reason in every jurisdiction for taking away the right to continue to be a member of the bar in good standing."

It is well established that an attorney may be disbarred for unprofessional conduct, and because of the loss of good moral character. One method of proof of the loss of the requisite moral character is by means of a conviction for a felony, or for a misdemeanor involving moral turpitude. The respondent was not convicted of a felony, and contends that his offense, while a misdemeanor, was not of such a nature as involves moral turpitude. The unlawful manufacture of intoxicating liquor is made punishable by section 6 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½c), and the punishment provided for a first offense is a fine of not over $1,000 or imprisonment not exceeding six months.

"Moral turpitude" is a term that has been the subject of many decisions. It has been defined as anything done contrary to justice, honesty, principle, or good morals, and as an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man. 27 Cyc. 912; 36 Corp. Jur. 1194; 2 Thornton on Attorneys, 1269; 5 Words and Phrases, 4580. The concept of moral turpitude depends upon the state of public morals, and may vary according to the community or the times. Rudolph v. United States, 6 F. (2d) 487, 50 App. D. C. 362, 40 A. L. R. 1042; State v. Mason, 29 Or. 18, 43 P. 651, 54 Am. St. Rep. 772; Earley v. Winn, 129 Wis. 291, 109 N. W. 633.

It has been decided in a long line of cases in Texas, Alabama, and Georgia, in applying a rule that the credibility of a witness may be attacked because of his conviction for an offense involving moral turpitude, that the unlawful possession, transportation, sale, or manufacture of intoxicating liquor are not offenses involving moral turpitude. Holmes v. State, 68 Tex. Cr. R. 17, 150 S. W. 926; Hightower v. State, 73 Tex. Cr. R. 258, 165 S. W. 184; Jennings v. State, 82 Tex. Cr. R. 504, 200 S. W. 169; Carter v. State, 100 Tex. Cr. R. 95, 271 S. W. 629; Swope v. State, 4 Ala. App. 83, 58 So. 809; Abrams v. State, 17 Ala. App. 379, 84 So. 862; Lyles v. State, 18 Ala. App. 62, 88 So. 375; Horsley v. State, 19 Ala. App. 263, 96 So. 937; Ex parte Marshall, 207 Ala. 566, 93 So. 471, 25 A. L. R. 338; Wheeler v. State, 4 Ga. App. 325, 61 S. E. 409; Edenfield v. State, 14 Ga. App. 401, 81 S. E. 253. A similar conclusion as to the right to disqualify a witness by a record of conviction was reached in McGovern v. Hays & Smith, 75 Vt. 104, 53 A. 326, and in Fort v. City of Brinkley, 87 Ark. 400, 112 S. W. 1084, in a proceeding to revoke the license of a physician.

A different view is taken by the Supreme Court of Oklahoma, as expressed in Hendrix v. State, 4 Okl. Cr. 611, 113 P. 244, where it is said:

"The illegal sale of intoxicating liquor, wrongfully and deliberately committed, is an immoral, degrading, and degraded act, and is committed only by the lawless and unreliable classes of our population. It is a matter of common notoriety that in nine cases out of ten the `bootlegger' will not only not hesitate to commit perjury in his own behalf, but also he expects every man to whom he vends his stuff to commit perjury for him, should the occasion arise. The unlawful sale of intoxicating liquor involves moral turpitude, and shows a want of moral character. Therefore, for the purpose of affecting the credibility of a witness, he may be asked and required to answer whether he has been convicted of this offense."

See Crawford v. Ferguson, 5 Okl. Cr. 377, 115 P. 278, 45 L. R. A. (N. S.) 519; Missouri, K. & T. Ry. Co. v. Johnson, 34 Okl. 582, 126 P. 567; Fowler v. State, 8 Okl. Cr. 130, 126 P. 831.

In Rousseau v. Weedin, 284 F. 565, the Circuit Court of Appeals of the Ninth Circuit considered the effect of a conviction as a "jointist" under the laws of Washington upon the right to order his deportation as an alien, and said:

"A `jointist,' under the statute of Washington (Laws 1917, p. 60, § 11), is one who opens up and conducts a place `for the unlawful sale of intoxicating liquor,' and the offense is declared to be a felony punishable by imprisonment of not less than one year or more than five years. The only question before this court is whether or not the crime involves moral turpitude. We think that the court below properly ruled that it does. The name of the crime is itself expressive of the degraded nature of the place at which the unlawful sale of intoxicating liquor is carried on. It suggests a resort of ill repute, and we think it may be affirmed that any one who willfully opens a place for conducting a business which is positively forbidden and made punishable by law as a felony is guilty of an offense which involves moral turpitude."

The nature of offenses in violation of the laws against the traffic in intoxicating liquors has been directly before the courts in four reported cases, wherein the offenders were attorneys at law, and the question presented was the right of disbarment because of such offenses. In Underwood v. Commonwealth, 105 S. W. 151, the attorney was disbarred upon a showing that he had been convicted three times, while county attorney, of selling intoxicating liquor in violation of the local option law. The Court of Appeals of Kentucky in the course of the opinion said:

"To be admitted to the bar, a person must not only be learned in the law, but possess a character of honesty, probity, and good demeanor. A certificate of such...