In re Disbarment of Henry

• Decision Date: 08 February 1909
• Citation: 15 Idaho 755,99 P. 1054
• Parties: In re Disbarment of A. M. HENRY
• Court: Idaho Supreme Court

99 P. 1054

15 Idaho 755

In re Disbarment of A. M. HENRY

Supreme Court of Idaho

February 8, 1909

DISBARMENT OF ATTORNEY-CONVICTION OF CRIME INVOLVING MORAL TURPITUDE-PETIT LARCENY INVOLVES MORAL TURPITUDE-FORMER CONVICTION-CRUEL AND UNUSUAL PUNISHMENT.

1. Under the provisions of subd. 1 of sec. 4003, Rev. Stat. of 1887, an attorney and counselor at law may be disbarred for and on account of his conviction of a felony or misdemeanor involving moral turpitude.

2. "Moral turpitude," as generally defined and recognized by the authorities, "is 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."

3. Although the point at which an act begins to take on the color of turpitude is not very definitely marked and pointed out, still there can be no doubt in the mind of a man of ordinary intelligence but that he has long since passed into the confines of moral turpitude before he completes an act of larceny. The commission of the crime of larceny, whether grand or petit, clearly and undoubtedly involves moral turpitude as that term is commonly used.

4. Although a defendant has been previously convicted for a violation of a village or city ordinance, such judgment of conviction is not a bar to a subsequent conviction upon the same state of facts for the violation of a state statute.

5. The fact that a statute authorizes the disbarment of an attorney for and on account of his conviction of a felony or mis- demeanor involving moral turpitude, does not amount to a violation of any of his constitutional rights prohibiting the infliction of cruel and unusual punishment nor is it an additional punishment to that inflicted by the judgment of conviction.

(Syllabus by the court.)

ACCUSATION by original proceedings in this court for the disbarment of A. M. Henry, an attorney of this court. Order and judgment of disbarment.

D. C. McDougall Attorney General, and J. F. McLane, Assistant Attorney General, for the State.

A. M. Henry, pro se, and A. H. Brickenstein, Appointed by the Court, as Counsel for the Accused.

Counsel file no briefs.

AILSHIE, J. Sullivan, C. J., and Stewart, J., concur.

OPINION

AILSHIE, J.

This is a proceeding under the provisions of subd. 1, sec. 4002, Rev. Stat., charging A. M. Henry, an attorney of this court, with having been convicted of a misdemeanor involving "moral turpitude" and praying for his disbarment. The charge was preferred by the attorney general under the direction of this court. A certified copy of the record of conviction in the justice's court of South Nampa precinct, Canyon county, was transmitted to this court in compliance with sec. 4003, Rev. Stat. The provision of the statute under which the proceeding is had in this case is as follows:

"Sec. 4003. An attorney and counselor may be removed or suspended by the supreme court and by the district courts for either of the following causes, arising after his admission to practice:

"1. His conviction of a felony or misdemeanor involving moral turpitude, in which case the record of conviction is conclusive evidence."

The defendant appeared and objected to the sufficiency of the accusation, and also filed an answer. The objections raise the following questions:

First. That it does not appear from the accusation or the record of conviction that the conviction was had in a court of record, but that, on the contrary, it does appear that the conviction was had in a justice's court and that the record was not certified and transmitted by the clerk of any court of record as provided by sec. 4003.

Second. That it does not appear from the accusation or the record of conviction that the crime of which the defendant was convicted involved "moral turpitude" within the meaning of sec. 4002.

Third. That a judgment of disbarment, in addition to the fine imposed by the judgment of conviction, would be violative of the constitutional provisions prohibiting the infliction of cruel and unusual punishment.

In answer to the first contention, it is sufficient to say that the statute, secs. 4002 and 4003, Rev. Stat., does not require that the conviction be had in a court of record. On the contrary, it impliedly contemplates that some of the convictions embraced within its terms may be had in inferior courts. Most of the misdemeanors defined by the statute of the state are cognizable in courts of justices of the peace, which courts have original jurisdiction in such cases. The fact that sec. 4003 provides that the clerk of the court in which the conviction was had shall transmit a certified copy of the record of conviction does not render it mandatory that such conviction shall be had in a court that has a clerk as distinguished from the judge of such court. The justice's court has no such officer, but the justice acts both as judge and clerk of his court. (Zimmerman v. Bradford-Kennedy Co., 14 Idaho 681, 95 P. 825.) There is no merit in this contention.

That the second objection has no merit, we have no doubt, The certified copy of the record and the accusation show that the defendant was convicted of the crime of petit larceny. That larceny is a crime involving "moral turpitude" there can be no serious doubt. It is a crime per se and is innately wrong and violative of the rights of property and of individuals and society. To say that this crime could be committed without involving turpitude and carrying with it moral obliquity would be out of the question. While it is true that the expression "moral turpitude" is not very accurately and concisely defined, and that the point at which an act begins to take on the color of turpitude is not very definitely marked and pointed out, still there can be no doubt in the mind of a man of ordinary intelligence but that he has long since passed into the confines of "moral turpitude" before he completes an act of larceny. The following general definition has been given by a great many authorities and seems to be approved by all that have considered the question: "Moral turpitude is 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." (Newell on Defamation, Slander and Libel, sec. 12; 27 Cyc. 912; Bouvier's Law Dictionary; In re Coffey, 123 Cal. 522, 56 P. 448, 43 P. 651; Ex parte Mason, 29 Ore. 18, 54 Am. St. Rep. 772, 43 P. 651; In re Kirby, 10 S.D. 322, 73 N.W. 92, 39 L. R. A. 856.) It was specially held in Redway v. Gray, 31 Vt. 292; Perdue v. Barnett, Miner 138, and also suggested in Re Coffey, 123 Cal. 522, 56 P. 448, that larceny distinctly involves "moral turpitude." Sec. 7045, Rev. Codes, defines larceny as "the felonious stealing, taking, carrying, leading or driving away the personal property of another." The only difference between grand larceny and petit larceny consists in the class, kind or value of property stolen. In the case...