In re Hilton

• Decision Date: 01 July 1916
• Docket Number: 2886
• Citation: 158 P. 691,48 Utah 172
• Court: Utah Supreme Court
• Parties: In re HILTON

158 P. 691

48 Utah 172

In re HILTON

No. 2886

Supreme Court of Utah

July 1, 1916

In the matter of the charges against Orrin N. Hilton, an attorney.

Respondent disbarred.

C. S Varian, F. K. Nebeker and A. L. Hoppaugh for Grievance Committee.

Ira Snyder, Soren X Christensen for respondent.

STRAUP C. J. McCARTY, J., FRICK, J., concurring.

OPINION

STRAUP, C. J.

This is a proceeding instituted by the grievance committee of the State Bar Association to disbar respondent, Orrin N. Hilton a member of the bar of this court.

It is charged in the information that he is guilty of unprofessional conduct in the particulars that he, in violation of his oath and of his duty as an officer of this court, and with the intent to bring the courts and judges of this State into disrepute, did falsely and maliciously charge that they, in the discharge of their official duties, were subservient to and controlled by a religious power foreign to the laws and the Constitution of the State; exhibited towards them a contemptuous disregard of their authority; imputed to them dishonorable and unlawful motives and acts in the discharge of their official duties, and in furtherance thereof did willfully misrepresent the facts and proceedings of a case had before the courts of this State, wherein the State of Utah was plaintiff, and one Joseph Hillstrom, charged with and convicted of first degree murder, the defendant, and especially did falsely charge and state that this court, through a preponderating and an imponderable and undefined influence of the Mormon Church, was persuaded to take an attitude of hostility toward Hillstrom, and that the views expressed by this court in that case were but in consonance with the views of the church; and with like purpose and intent, and to bring the administration of the law of this State into disrepute, willfully and falsely misrepresented the proceedings of the case before the state board of pardons, charged the Justices of this court, who, by virtue of their office, are also members of such board, as being with others, responsible for "false, wicked, and malicious aspersions on Hillstrom's character," and falsely and maliciously attributed to such justices as such members dishonest acts and motives. The information is largely predicated on a public address delivered by the respondent in Chicago in funeral rites over the body of Hillstrom and on interviews prepared by himself and at his request published by the local press.

In January, 1914, at ten o'clock at night, two men, with masks over their faces, guns in hand, and for the purpose of robbery or murder, entered a grocery store at Salt Lake City and deliberately shot to death the storekeeper and his son. In the assault one of the assailants himself was shot by the son. Two hours thereafter Joseph Hillstrom was found 2 1/2 miles from the place of the homicide suffering from a serious flesh gunshot wound through the chest, and applying to a doctor for medical aid. Later he was identified as one of the perpetrators of the crime, charged with first degree murder, tried, convicted, and sentenced to death. The respondent, as his chief counsel, prosecuted an appeal to this court. He principally contended that the evidence was insufficient to connect Hillstrom with the commission of the offense or to show motive, and complained of rulings of the trial court respecting spectacular performances of Hillstrom, who, on the trial, without notice or cause, in the presence of the jury and during the progress of the trial, summarily discharged counsel selected and employed by himself, demanded that he be permitted to conduct his own defense in person without counsel, and later consented that they might remain in the case. These matters, on a complete record of all the evidence and of all the proceedings in the cause, were reviewed by us on the appeal, which resulted in an affirmance of the judgment. State v. Hillstrom, 46 Utah 341, 150 P. 935. The opinion contains a statement of the facts, the assignments of error relied on, and our reasons for affirming the judgment. No petition for a rehearing was filed, nor was there any claim made before the court, or in any of the proceedings thereof, that the law was misapplied or that the facts were misconceived. On remittitur and resentence an application was made to the state board of pardons, consisting of the Governor, the Attorney General, and the three Justices of this court, for commutation of sentence. In that application Hillstrom was again represented by the respondent. As appears by the official report of that board, put in evidence in this proceeding, all of the stated grounds for commutation of the sentence were included in the assignments of error before the Supreme Court and there adjudged adversely to the respondent's contentions. Nevertheless, and as fully appears by the board's record, Hillstrom and his counsel were given every opportunity to again review the evidence and to present any new matter, or anything additional deemed by them beneficial to Hillstrom's cause. But nothing such was attempted or offered. The official report as to that reads:

"The applicant before judgment was entitled to every presumption of innocence; but, after a verdict finding him guilty and after judgment and its affirmance, the presumption of innocence no longer prevails. The presumption then to be indulged is that the judgment is right and that the applicant is guilty. He, after that, had the burden to show, or bring forward, or point out, something to justify a commutation of sentence, or clemency in his favor. But neither he nor his counsel before the board attempted to point out anything wherein or in what particular they claimed the evidence was insufficient to justify the verdict. Nor did they offer or attempt to show anything respecting the applicant's life, habits, morals, or previous character, or who he was or what he had done, or where he was from, or what kind of life had been lived by him. Nor did they offer or attempt to show anything new or additional respecting the case, or anything in favor of the applicant, or anything to justify commutation or clemency. What was urged in support of the application is this: Cases were referred to wherein we were told convictions rested alone on circumstantial evidence, and where later it was disclosed that the persons convicted were innocent. It, however, was not claimed, nor was there any attempt made to show that the facts in those cases and in this case were similar or even analogous. Frequent assertions were made by counsel that the conviction rested alone on circumstantial evidence, and that the applicant's life ought not to be taken on that kind of evidence. But, as stated by the Supreme Court in its decision, and as shown by the record, the conviction does not rest on circumstantial evidence alone. There is direct evidence, testimony of eyewitnesses, to identify the applicant as one of the perpetrators of the crime. No reference whatever was made to that testimony by counsel, nor did they in any manner attempt to inform the board wherein or for what reason the conviction rested alone upon circumstantial evidence. Indeed, counsel, before the board, for some reason avoided all reference to the real facts of the case and as disclosed by the record, and in such respect contended themselves with fervid exhortations on the horrors of an execution on circumstantial evidence and with unwarranted assaults on the good name of the states of Utah and Colorado."

The state proved beyond controversy that in the assault one of the perpetrators of the crime was himself shot in the store. When Hillstrom, two hours after the commission of the homicide, suffering from a fresh gun-shot wound, applied for medical aid, he stated to the physician that he was shot "in a quarrel over a woman, in which he was to blame as much as the other fellow, and wished the matter kept quiet." The State proved that statement to show his unsatisfactory or unreasonable explanation of his fresh gun-shot wound. No evidence whatever was given by him at the trial, or before the board of pardons, to show that his wound was received in such manner. Something, however, in argument was attempted to be made of this before the board of pardons, as showing Hillstrom's gallantry in protecting the honor of a woman. As to that the board, in its official report, states:

"Hillstrom's claim to his physician that he received his wound in a quarrel over a woman was but evidence of his declaration. Such an extrajudicial, self-serving, and unsworn declaration would be no evidence of the fact that the wound was caused in such manner. If the applicant claimed that the wound was so produced, it was his duty, and he was afforded full opportunity, to bring forward something to support it. He cannot ask any one to believe his claim with no evidence whatever to support it, and with no effort or attempt even to produce or furnish any. Yet, upon this weird, vague, and self-serving statement, wholly unsupported by any evidence, the board was in effect asked to make a finding that the applicant at some undisclosed place was shot in a quarrel over some unknown and undescribed woman, by some unknown and undescribed man, and thus to ignore all the evidence adduced at the trial and shown by the record that he was shot in the store at the time of the homicide."

The report further recites:

"At the conclusion of counsel's argument, without offering anything on behalf of the applicant, he, being present during all the proceedings, was asked if he desired to make any statement, or to say anything on his own behalf. His reply was that he would not give the board any information, nor make any statement, until he was first granted a new trial. He...