In re Dampier

• Decision Date: 01 May 1928
• Docket Number: 4808A
• Parties: In re EDWARD R. DAMPIER
• Court: Idaho Supreme Court

267 P. 452

46 Idaho 195

In re EDWARD R. DAMPIER

No. 4808A

Supreme Court of Idaho

May 1, 1928

ATTORNEY AND CLIENT - BAR COMMISSION - PROCEEDINGS TO REVIEW JUDGMENT OF-DISBARMENT-MORAL TURPITUDE.

1. The state bar commission has no power under Laws 1923, chap. 211 secs. 1, 8, to make and enter a judgment disbarring an attorney because of his conviction of a crime not involving any matter in litigation nor any duty to or relation with a client.

2. The supreme court will take cognizance of certified record of attorney's conviction of felony or misdemeanor involving moral turpitude, when brought before it in any manner, and hence will treat proceeding to review unauthorized judgment of state bar commission disbarring attorney on such ground as disbarment proceeding on certificate of conviction.

3. While record of attorney's conviction of crime in federal district court is conclusive on state supreme court, under C S., sec. 6578, subd. 1, question whether offense of which he was convicted involves moral turpitude, so as to require judgment of disbarment, under section 6590, is for supreme court to determine.

4. Generally speaking, crimes malum in se involve "moral turpitude."

5. "Felony or misdemeanor involving moral turpitude," as used in C. S., sec. 6578, subd. 1, and section 6590 requiring disbarment of attorney convicted of such crime includes only crimes involving moral turpitude under laws of Idaho, which clearly define and classify felonies and misdemeanors (C. S., sec. 8084), rather than laws of other jurisdictions, including United States, laws of which (Comp. St. U.S. , sec. 10509 [18 U.S. C. A., sec. 541]), classify such offenses differently.

6. That attorney was convicted of violating Penal Code U.S. , sec. 211 (18 U.S. C. A., sec. 334), by sending obscene and nonmailable letters through the mails, which is a felony, under Comp. St. U.S. , sec. 10509 (18 U.S. C. A., sec. 541), but not a crime eo nomine, under laws of Idaho (C. S., sec. 8084), is not conclusive that conviction was of a felony or misdemeanor involving moral turpitude, within C. S., sec. 6578, subd. 1, so as to require disbarment, under section 6590.

7. Supreme court is limited to declaration of legislature's intent in construing statute, and can neither legislate nor enlarge words by construction to include other conduct of like, equal or greater atrocity than that condemned thereby, though within same mischief to be remedied, when not fairly included in language of act.

8. Legislature having especially refused to include letters as subject of C. S., sec. 8303, declaring everyone who wilfully and lewdly writes, composes, prints, etc., any obscene or indecent writing, paper or book guilty of a misdemeanor, attorney's conviction of sending obscene and nonmailable letters through the mails, in violation of Penal Code U.S. , sec. 211 (18 U.S. C. A., sec. 334), cannot be held conclusive evidence of moral turpitude, within C. S., sec. 6578, subd. 1, so as to require disbarment, under section 6590.

REVIEW of disbarment proceedings of the Board of Commissioners, Idaho State Bar. Dismissed.

Judgment for petitioner.

Bissell & Bird, for Petitioner and Appellant.

The crime of sending nonmailable matter through the United States mails is a crime malum prohibita; it is not a crime per se, and the commission of such crime does not constitute moral turpitude, within the meaning of such terms as it is used in C. S., sec. 6578, par. 1. (In re Henry, 15 Idaho 755, 99 P. 1054, 21 L. R. A., N. S., 207, and cases cited; People v. Smith, 290 Ill. 241, 124 N.E. 807, 9 A. L. R. 183, 184, and note beginning on page 202.)

If an attorney sends through the United States mail nonmailable matter, which has no connection with or bearing upon his professional duties as an attorney, he should not be subject to disbarment therefor. (In re Baum, 32 Idaho 676-683, 186 P. 927; 2 R. C. L., p. 1099; 6 C. J. 584, note 1, 600, notes 78-80; Dickens' Case, 67 Pa. 169, 5 Am. Rep. 420; People v. Appleton, 105 Ill. 474, 44 Am. Rep. 812; In re Stephens, 84 Cal. 77, 24 P. 46; Baker v. Commonwealth, 10 Bush (Ky.), 592-598; Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 L.Ed. 552-568; In re Elliott, 73 Kan. 151, 84 P. 750-752.)

Where an attorney has been convicted and punished for the commission of a crime entirely disconnected from his professional duties, the welfare and protection of the public do not necessitate his disbarment. (In re Wourms, 31 Idaho 291, 170 P. 919.)

Homer C. Mills, Amicus Curiae.

The crime upon which petitioner was convicted must involve moral turpitude, whether such crime be denominated a felony or misdemeanor. (C. S., sec. 6578; In re Thompson, 37 Cal.App. 344, 174 P. 86.)

Section 10381, U.S.C. S. 1918, Criminal Code, section 211, embraces numerous different crimes, and whether a violation of any of its provisions involves moral turpitude cannot be determined without a resort to evidence disclosing the facts and circumstances connected with a conviction thereof.

The terms of the federal statutes above referred to do not determine moral turpitude. The question of moral turpitude must be determined from the inherent immoral nature of the act. This element of moral turpitude is necessarily adaptive; for it is itself defined by the state of public morals, and thus far fits the action to be at all times accommodated to the common sense of the community. (In re Hopkins, 54 Wash. 569, 103 P. 805; Ex parte Mason, 29 Ore. 18, 54 Am. St. 772, 43 P. 651; Matter of Coffey, 123 Cal. 522, 56 P. 448; In re Kirby, 10 S.D. 322, 414, 73 N.W. 92, 39 L. R. A. 856, 859; Newell on Slander and Libel, 98.)

Moral turpitude is misconduct of an attorney in reference to the duties and obligation of his office as attorney. (In re Coffey, supra; Matter of Humphrey, 174 Cal. 290, 163 P. 60; State v. Kirke, 12 Fla. 278, 95 Am. Dec. 314; note in Delano's Case, 58 N.H. 5, 42 Am. Rep. 555; In re Elliott, 73 Kan. 151, 84 P. 750; In re Washington, 82 Kan. 829, 109 P. 700; In re Haymond, 121 Cal. 385, 53 P. 899; 6 C. J. 599, 600; State v. Mosher, 128 Iowa 82, 5 Ann. Cas. 984, 103 N.W. 105.)

Proceedings to disbar are not for the purpose of punishing an offender, but are solely for the purpose of discipline in the event the record justifies such action. (State v. Woerndle, 109 Ore. 461, 209 P. 604, 220 P. 744; In re O'Connell, 49 Cal.App. Dec. 160.)

1923 Session Laws, chap. 211, does not authorize the bar commissioners to discipline an attorney except for professional misconduct, the purpose of the act being to protect the public against improper, unethical and unauthorized practice of the law profession.

The statute is free from ambiguity and uncertainty in this respect and needs no construction. Under these circumstances, it will only be enforced as written. (23 Cal. Jur., sec. 103, p. 721.)

O. W. Worthwine and Oliver O. Haga, Prosecuting Committee of Idaho State Bar.

The element of moral turpitude is necessarily adaptive; it is to be defined and interpreted according to the public morals of the times, and it must be determined with reference to the standard of moral conduct approved in the state where the crime was committed. (In re Bartos, 13 F.2d 138; Beck v. Stitzel, 21 Pa. 522, 524; State v. Mason, 29 Ore. 18, 54 Am. St. 772, 43 P. 651; In re Hopkins, 54 Wash. 569, 103 P. 805; In re Henry, 15 Idaho 755, 99 P. 1054, 21 L. R. A., N. S., 207; State v. Edmunson, 103 Ore. 243, 204 P. 619; State v. Riddle, 213 Ala. 430, 105 So. 259; In re O'Connell, 184 Cal. 584, 194 P. 1010; Kurtz v. Farrington, 104 Conn. 257, 132 A. 540.)

The sending of an obscene and lascivious letter through the mail is a misdemeanor involving moral turpitude, and upon conviction thereof by a federal court the attorney may be disbarred. (Barnes v. District Court, 178 Cal. 500, 173 P. 1100.)

A disbarment proceeding is not for the punishment of the attorney but for the protection of the public. Those charged with the administration of justice must maintain the confidence and respect of the public, and it is imperative that an attorney who has been convicted of a crime involving moral turpitude should be promptly disbarred and his name stricken from the roll of attorneys entitled to practice before the courts of the state. (In re Wourms, 31 Idaho 291, 170 P. 919; In re Kerl, 32 Idaho 735, 8 A. L. R. 1259, 188 P. 40; In re Henry, 15 Idaho 755, 99 P. 1054, 21 L. R. A., N. S., 207; In re Kirby, 84 F. 606; 6 C. J. 584.)

No proof of moral turpitude is required where one is convicted of an "infamous crime." A crime which might have been punished by imprisonment in a penitentiary is an "infamous crime" even if the sentence actually pronounced is of a small fine only. (The Paquette Habana, 175 U.S. 677, 682, 20 S.Ct. 290, 44 L.Ed. 320; United States v. J. Lindsey-Wells Co., 186 F. 248, 249; Low v. United States, 169 F. 86, 89, 94 C. C. A. 1; 16 Am. & Eng. Ency. Law, 2d ed., 247.)

If regularly convicted of a felony an attorney will be struck off the roll as of course, whatever the felony may be, because he is rendered infamous. If convicted of a misdemeanor which imports fraud or dishonesty, the same course will be taken. (Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 L.Ed. 552.)

WM. E. LEE, C. J. TAYLOR, J., Judge Varian, Concurring in part. Givens, J., BUDGE, J., dissenting.

OPINION

WM. E. LEE, C. J.

This is a proceeding by Edward R. Dampier, under sec. 8, chap. 211 Laws of 1923, to review a "judgment" of the board of commissioners of the Idaho state bar, by which it was "ordered and adjudged" that he be disbarred from practicing law. The complaint, on which disbarment was ordered, charged that Dampier was indicted, tried and convicted in the United States district court for this state of "sending...