In re Breen

• Decision Date: 19 February 1908
• Docket Number: 1,739.
• Citation: 93 P. 997,30 Nev. 164
• Parties: In re BREEN.
• Court: Nevada Supreme Court

93 P. 997

30 Nev. 164

In re BREEN.

No. 1,739.

Supreme Court of Nevada

February 19, 1908

Proceedings for the disbarment of Peter Breen, an attorney. Judgment of disbarment awarded.

R. C Stoddard, Atty. Gen., for the State.

Campbell Metson & Brown, Campbell, Metson, Drew, Oatman & MacKenzie W. B. Pittman, Key Pittman, Charles Lewers, and Bartlett & Thatcher, for respondent.

PER CURIAM.

In the case of the State of Nevada v. Patrick Dwyer, 29 Nev. 421, 91 P. 305, on appeal to this court from a conviction of murder in the first degree and sentence of death, the judgment and order denying a motion for a new trial were reversed on the 12th day of August, 1907. The reversal was upon the sole ground that the trial court erred in not granting defendant's motion for a change of venue. The opinion was a lengthy one, written for the court by Norcross, J.; the full bench concurring. During the course of the opinion the following statement was made: "The theory of the state, if we understand it, was that the defendant killed Williams by mistake, thinking the latter was one O'Brien, a man with whom defendant had had trouble during the day over a prostitute." It will appear from an examination of the opinion in the case that this statement quoted was only an incidental observation of what this court understood was the fact, and was not the statement of anything in any way deemed essential to the determination of the question upon which the case was decided. The statement quoted, however, was in strict accordance with the position taken in the brief of the Attorney General and in the oral argument of A. J. Maestretti, district attorney of Lander county, upon the hearing of the appeal; it being contended in this court that certain testimony, objected to by defendant's counsel, was admissible upon this theory. The testimony itself, introduced by District Attorney Maestretti in the state's case in chief, showing the quarrel between Dwyer and O'Brien on the same day and just before the killing of Williams, and that Dwyer and O'Brien threatened to kill each other on sight, was such as to suggest the theory of mistake, even if such theory had not been argued to this court, and apparently was admissible on the state's case in chief only on this hypothesis as tending to show the motive and purpose of the shooting. The record in the Dwyer Case, however, does not show that counsel in the district court declared it to be the theory of the state that Dwyer killed Williams through mistake, and the answer of District Attorney Maestretti sets up that that was not his theory at the trial, that he offered evidence as to the trouble with O'Brien to show the state of mind of defendant at the time, although as a matter of fact he admits that the only inference to be drawn from the record is that Dwyer killed Williams by mistake, which is in accordance with his own belief. In the oral argument in this court on the appeal in the case of State v. Dwyer, following the point made by the Attorney General in his brief, District Attorney Maestretti made the following statement: "There is one point I did not intend to touch upon, but I have been requested to do so, and in examining the record the court will find, and I suppose that is the reason the objection is taken, that the feeling or intent to take life was not as to Williams, but as to O'Brien, and, that the killing of Williams, it will be discovered by this court, must have been an accident, that Dwyer meant to get O'Brien, and not Williams, and upon that point we have collected a few authorities which we wish to call to the attention of this court. Jackson v. State, 106 Ala. 12, 17 So. 333; McGehee v. State, 62 Miss. 772, 52 Am. Rep. 209; People v. Torres, 38 Cal. 141; 21 Am. Encyc. of Law 104, 105." After the time had elapsed for the filing of a petition for a rehearing, and no such petition being filed, remittitur was issued. On the 13th day of September, 1907, the defendant was brought before the trial court, and the order of this court directing a change of venue, for the purpose of a new trial, carried out. After the order for a change of venue had been made, the said A. J. Maestretti, Esq., district attorney of Lander county, made the following statement in open court: "If it pleases the court at this time, I wish to rise to the question of privilege in relation to a statement made in the disposition of this case, wherein it was reversed in the Supreme Court, and that is this: In its decision the Supreme Court has stated in substance that the theory of the prosecution in this case was that Dwyer killed Williams through mistake, while looking for a man named O'Brien, with whom the defendant had had trouble during the day over a prostitute. I wish to state at this time that that is absolutely not the fact; further, that there is nothing in the records from the first page to the last which suggests or would warrant the Supreme Court in making such a statement in its decision, and where anything is shown on that record upon which the Supreme Court renders such a decision is beyond my understanding." Upon the conclusion of the foregoing statement of A. J. Maestretti, Esq., the District Judge, respondent herein, made the following statement and order: "I heartily commend you, Mr. District Attorney, for the steps you have taken to set yourself right with the public in a matter so closely connected with your onerous official duties. The statement in the decision of the Supreme Court which you contradict I also know to be absolutely without foundation. You were alone in the case for the state, and you did not conduct its prosecution upon the theory of mistake, nor is there anything in the records to so indicate. The Supreme Court, being the tribunal under our judicial system to which has been given, so to say, the last word, that tribunal, it seems to me, should be exceptionally careful to make no statement having a tendency to unjustly reflect upon or misstate the position of any officer, witness, or person connected with the trial of a cause. So far as it appears to me by the stenographic record of the case on file, the statement in the opinion as written by Judge Norcross, to which objection has been made like some other assertions in the same, abnormally strange document, in my opinion, is neither fair to you as prosecuting officer, nor to this court, and whether or not it was made for the purpose of bolstering up a decision, which, to my mind, is neither founded on law nor supported by fact, and is a palpable reversal of the Millain Case, which for 40 years has been the accepted law in this state pertaining to a change of venue in a criminal case, it was highly reprehensible for its author, or authors, to have made it. I say reprehensible, as a modification I shall say-reprehensible if the court knew what it was doing, pitiful if it did not. Mr. Clerk, you will enter in your minutes the statement of the district attorney side by side with the remarks of the court." The statements of respondent and of A. J. Maestretti so entered in the minutes of the Third judicial district court in and for the county of Lander were published in the press of Lander county and widely copied throughout the state. The attention of this court having been directed to the published account of the proceedings had in the said district court, an order was made directing the Attorney General to investigate the matter, and, if he found the same to be as published in the press reports, to present the facts to this court in the form of an affidavit. Pursuant to such order, the Attorney General filed an affidavit setting forth all of the facts, and upon which affidavit this court ordered citations issued, and directed to respondent herein and to the said A. J. Maestretti to appear and show cause, if any they have, why they should not be adjudged guilty of contempt of this court and punished accordingly, and, further, that they show cause, if any they have, why they should not be adjudged guilty of conduct unbecoming members of the bar of the state and be disbarred.

Respondent appeared in response to the citation, and filed an answer to the affidavit of the Attorney General. The answer admits that respondent made the statement and order heretofore quoted. As justification therefor, he avers that he was not aware that the Attorney General and said District Attorney Maestretti had taken the position in this court that Dwyer killed Williams by mistake, thinking the latter was one O'Brien until he was served with a copy of the affidavit of the Attorney General; that, when the district attorney made the statement in the district court copied into the minutes, respondent understood and believed that no such theory had ever been mooted by the prosecution, as none such was ever urged or adopted in said district court; that at said time respondent understood that this court in rendering its opinion and decision, and in using the language therein relative to the theory of the state, referred solely to the proceedings in the district court during the trial of the said Patrick Dwyer, and not to the proceedings in the Supreme Court; that, when said case was on trial in the said district court, respondent believed the case of State v. Millain, 3 Nev. 409, to be the leading authority in this state upon the question of change of venue in a criminal case, and an authority upon the qualification of jurors; that respondent considered his court bound by the Millain Case, and believed that this court had overruled said Millain Case without so stating; that respondent, believing that this court in its opinion "was stating matters and things that happened at the trial in said district court and criticising wrongfully and unjustly the district attorney in his...