In re Parkinson.
Decision Date | 06 June 1939 |
Docket Number | No. 35670.,35670. |
Citation | 128 S.W.2d 1023 |
Parties | In re Disbarment Proceedings Against JOHN G. PARKINSON, SR. |
Court | Missouri Supreme Court |
(1) The evidence shows that the respondent is guilty as charged in Counts 5, 6 and 7, and for that reason Exceptions 4, 5 and 6, to the report of the commissioner should be sustained. As to Count 5. Secs. 30, 31, 41, Rule 35. As to Count 6. Sec. 34, Rule 35. As to Count 7. Secs. 27, 28, Rule 35. (2) The failure of respondent to call as a witness his employee, Oscar Payne, creates an inference that Payne's testimony would have been damaging to respondent because Payne was peculiarly available to respondent as a witness. Chavaries v. Natl. Life & Acc. Co., 110 S.W. (2d) 795; McInnis v. St. L.-So. Inc., 108 S.W. (2d) 116. (3) The deposition of Oscar Payne in another case was competent. State v. Benson, 8 S.W. (2d) 53; State v. Menz, 106 S.W. (2d) 448; 12 C.J. 637; 22 C.J. 399. (4) This court should review the record and the evidence in this matter de novo and find the accused guilty or innocent of the charge contained in the information, notwithstanding the report, findings of fact, conclusions of law and recommendations of the commissioner. (a) This court here in exercising its original jurisdiction as the trier of the facts and the report and recommendation of the special commissioner are only advisory and not in any sense binding on this court. State ex inf. v. Arkansas Lbr. Co., 260 Mo. 269.
James A. Reed and Robert Ingraham for respondent.
(1) The report of the commissioner that the evidence is insufficient to show that respondent is guilty of professional misconduct on each and every charge and recommending that the information be dismissed and respondent discharged was overwhelmingly sustained by the credible evidence in the case. (2) The charges should be dismissed unless sustained by clear and convincing evidence and in weighing the evidence the findings of the commissioner are entitled to great weight. Although cases of this nature are called neither "civil" nor "criminal," yet as to the degree of proof required they are analogous to criminal charges. The proof, if not required to be beyond a reasonable doubt, should at least be clear and convincing, not mere suspicion or conjecture. The rule applicable to circumstantial evidence in conspiracy charges should apply, i.e., that if the evidence is as consistent with innocence as with guilt, the charge is not proved.
This is an original proceeding, instituted by leave, on the information of the General Chairman of Bar Committees, and the Advisory Committee to said General Chairman (under rule No. 36 of this court), charging John G. Parkinson, Sr. (who will hereinafter be referred to as respondent), a licensed and practicing attorney at St. Joseph, with professional misconduct, the object of which is to revoke his license as an attorney, and to forever disbar him. The information is in seven counts, the first four of which charge specific acts of professional misconduct; whereas the remaining three are general in character. The fourth count is no longer involved, as the committee offered no evidence in support of the charge therein contained. Omitting formal portions, and the fourth count in its entirety, the charging parts of said information are as follows:
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State ex Inf. Taylor v. Cumpton
...respective parties and accepted the oral testimony as true. We defer to his findings on the fact issues presented. In re Parkinson, 344 Mo. 175, 128 S.W.2d 1023, 1037, 1039. Relator relies particularly upon State ex rel. Tilley v. Slover, supra, and State v. Yager, 250 Mo. 388, 403, 157 S.W......
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...case. The findings and conclusions of the special commissioner are not binding on us, but they are advisory and helpful. In re Parkinson, 344 Mo. 715, 128 S.W.2d 1023, loc. cit. The report of the special commissioner, regarding the evidence heard with respect to the charges, and the law app......
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State on Information of Eagleton v. Stupp Bros. Bridge & Iron Co.
...to be swayed, if we deem his position sound, by his conclusions upon the law.' 169 S.W. 164, 165. Respondents have cited In re Parkinson, 344 Mo. 715, 128 S.W.2d 1023, in which we stated that '[t]he findings of fact of a special commissioner are not binding, but are persuasive [State ex inf......
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