In Re Duncan.

• Citation: 62 S.E. 406,81 S.C. 290
• Parties: In re DUNCAN.
• Decision Date: 11 September 1908
• Court: United States State Supreme Court of South Carolina

62 S.E. 406

81 S.C. 290

In re DUNCAN.

Supreme Court of South Carolina.

Sept. 11, 1908.

1. Attorney and Client—Disbarment Proceeding—Sufficiency of Evidence.

In disbarment proceedings against an attorney for presenting false affidavits in support of a motion for leave to apply for a new trial on the ground of newly discovered evidence, the alleged affidavits being that affiant committed the crime, instead of defendant's client, upon considering the evidence upon which the latter was convicted to determine the probable truth of the affidavit, which the alleged affiant denied making, the evidence held to sustain the conviction.

2. Same.

In disbarment proceedings for presenting false affidavits in support of a motion for leave to apply for a new trial on the ground of newly discovered evidence, the alleged affiant denying having made the affidavit, the evidence held to show that defendant's charge that the original affidavit was stolen by the prosecuting officers was false.

3. Same.

In disbarment proceedings for presenting false affidavits to the Supreme Court in support of a motion for leave to apply for a new trial on the ground of newly discovered evidence, the evidence held to show that no affidavit was ever made by the alleged affiant.

4. Same — Ground for Disbarment — Presenting False Affidavits.

Knowingly presenting false and fictitious affidavits to the Supreme Court by an attorney to obtain leave to move for a new trial, coupled with the fact that such attorney's reputation as an honorable lawyer was bad and that disbarment proceedings had been taken against him before when he was warned against dishonorable practices, is sufficient ground for his disbarment.

In the matter of disbarment and contempt proceedings in the Supreme Court against John T. Duncan. Order of disbarment.

J. Fraser Lyon, Atty. Gen., for the State.

O. L. Schumpert, for John T. Duncan.

MEMMINGER, Circuit Judge. At the May, 1906, term of the court of general sessions for Richland county, Judge Klugh presiding, Jesse Hunter, a negro, was tried and convicted under a charge of firing upon and wounding one of a magistrate's posse sent to his house to arrest him. John T. Duncan, of the Richland county bar, defended Hunter, and, after conviction, moved Judge Klugh for a new trial, which was refused. An appeal to the Supreme Court was then taken and supersedeas bond given: the wife of said Duncan being one of the sureties thereon. There was considerable delay in perfecting this appeal; but pending the supersedeas, in December, 1907, in conformity with the practice then effective as to motions for new trials on after-discovered evidence, Mr. Duncan moved the Supreme Court for leave to apply to the circuit court on the ground of such after-discovered evidence; the said evidence purporting to be, among others, an affidavit of one Jeff Taylor stating that he was at Hunter's house at the time of the shooting for which Hunter had been convicted, and that he, not Hunter, did the shooting. This motion was resisted by Mr. Solicitor Timmerman, then solicitor of the Fifth circuit, of which Richland county was then a part. The Supreme Court refused this motion, but thereafter Mr. Duncan obtained a stay of the remittitur, and the motion came up for hearing at the next succeeding term of this court, in May, 1908. In the meanwhile, by an act of the Legislature, Mr. Solicitor Timmerman was put into the Eleventh circuit, and to the solicitor-ship of the Fifth circuit, composed of Richland and Kershaw counties, the Governor had appointed Christie Benet, of the Richland bar. When, therefore, the said motion came up in May, 1908, as aforesaid, Mr. Solicitor Benet represented the state, and, being notified of the motion and appearing therein, produced and read an affidavit from Jeff Taylor entirely denying that he had ever made the affidavit which Mr. Duncan claimed he had made, confessing to said shooting, an affidavit of Jesse Myers denying that he had ever authorized an affidavit purporting to be from him which Mr. Duncan was using in support of his motion, in which Myers stated that Taylor was at Hunter's house at the time of the shooting, and other affidavits corroborative thereof. At the trial of the cause Taylor had testified that he was not at Hunter's house, and knew nothing of the shooting. Mr. Duncan, claiming to be entirely shocked and surprised at the production of these affidavits, asked for time in which to reply thereto, and was given by the court until June 2, 1908, at which time the matter being again brought up, and as and for a showing in reply to said affidavits, Mr. Duncan insisted upon reading to the court his own affidavit, couched in fierce and denunciatory language, the substance of which was to vilify Solicitors Timmerman and Benet, and to accuse them, together with Magistrate Lykes, who had committed Hunter upon the shooting charge, and others in any wise connected with that prosecution, of a vile conspiracy ("a conspiracy, dark and damnable") to exculpate Taylor, convict Hunter and his wife, and injure and degrade him, Duncan, as a lawyer; and, in support of the genuineness of the Taylor affidavit, he submitted an affidavit purporting to be from his former stenographer, Mrs. Stewart, going to show a very distinct recollection on her part of the circumstances of the making of that affidavit, its substance, and its genuineness. Whereupon the said motion for leave to apply for a new trial was again refused, and on the same day this court, of its own motion, issued an order as follows: "From the affidavits in the cause of the State v. Jesse Hunter and Francis Hunter it appears that charges are made under oath that John T. Duncan, an attorney of this court, has knowingly submitted to this court false and fictitious affidavits. It is considered by the court that the said charges should be investigated. Therefore it is ordered that the said John T. Duncan do show cause before the Supreme Court on Monday, June 8, 1908, at 10 o'clock a. m., why he should not be attached for contempt or disbarred as an attorney for submitting said affidavits. Ordered further a certified copy of this order be forthwith served on the said John T. Duncan. Y. J. Pope, Chief Justice. Ira B. Jones, A. J. C. A. Woods, A. J." And on June 6th, by a per curiam order, Mr. Attorney General Lyon being requested by the court to conduct the investigation and trial under its said order of June 2d; on motion of said Attorney General, the hearing under the order of June 2d being deferred until July 15th. On June 10th the court made another order in the matter whereunder said Duncan was directed at the same time, to wit, July 15, 1908, also to show cause why he should not be attached for a contempt of this court on account of having so vilified its officers in the presence of the court, and used towards them such offensive language as would be unwarrantable to beused in this court under any circumstances, and so couching his charges against them and other persons in such harsh and intemperate language, and invective as to bring himself into the contempt of this court aforesaid. Associate Justice Gary being disqualified by reason of relationship to said Duncan by affinity, and not having participated in any of these proceedings, on July 15, 1908, Circuit Judge Memminger having been assigned by the Governor to take the place of Justice Gary, and the court being thus composed and ready to proceed with the matter, Mr. Schumpert appearing for Mr. Duncan and Mr. Attorney General Lyon for the state, due return was made to said orders on behalf of Mr. Duncan; the return being, as to the first order, under which disbarment was involved, for presenting false and fictitious affidavits, in substance a detailed statement of the circumstances under which he claimed the Taylor and Myers affidavits were obtained, and thus presenting a clear issue of fact upon this question: As to the second order, under which attachment for contempt was involved as aforesaid, in substance a reiteration of the alleged conspiracy charged in the affidavit of June 2d, involving the charge of theft of papers in the case by Mr. Solicitor Timmerman in conspiracy with Mr. Solicitor Benet and others, and, while reaffirming said charges, expressing regret and apology for the use of the intemperate language in which said affidavit was couched, the circumstances of extenuation being alleged to have been great haste in the preparation of the affidavit, without opportunity for revision of or reflection upon the same. Whereupon, the issues being made up under said orders of the court and the said returns, and the testimony thereon being delivered orally and stenographically reported, the state being the actor therein, and the hearing continuing through the said 15th of July and the next day, and argument being heard on behalf of the respondent (Mr. Attorney General Lyon declaring his unwillingness to press the matter by argument; it being upon the facts for the court, and therefore not arguing the same), the court reserved its decision, and now, after due deliberation, proceeds to announce the same.

The questions arising for decision are whether upon the record thus presented said John T. Duncan should be disbarred and stricken from the roll of attorneys of this state; and (or) should he be punished for a contempt of this court in respect to the matter of his affidavit of June 2d aforesaid.

Upon the question of the alleged affidavits of...