In re Smith

• Decision Date: 10 December 1936
• Docket Number: Gen. No. 23238.
• Citation: 5 N.E.2d 227,365 Ill. 11
• Parties: In re SMITH.
• Court: Illinois Supreme Court

365 Ill. 11

5 N.E.2d 227

In re SMITH.

Gen. No. 23238.

Supreme Court of Illinois.

Dec. 10, 1936.

Disbarment proceeding against J. Kelly Smith, an attorney. The Board of Governors of the Illinois State Bar Association filed a report recommending the suspension of respondent for one year, and he brings exceptions.

Respondent censured.

William D. Knight, of Rockford, amicus curiae.

Asa J. Wilbourn, of Cairo, and Everett Lewis, of Benton, for respondent.

ORR, Justice.

The Pulaski County Bar Association filed a complaint against respondent, J. Kelly Smith, a practicing lawyer of this state, charging him with misconduct and unethical practice. Evidence was heard by the grievance committee of the Illinois State Bar Association for the First Supreme Judicial District, and that committee made a report to the board of governors of the Illinois State Bar Association finding respondent guilty of unethical and unprofessional conduct as charged in the first and second paragrphs of the petition but dismissingthe other five charges therein because they were not sustained by the evidence. The committee recommended the respondent's disbarment, and the latter filed exceptions to the committee report. After a further hearing before the board of governors, the report of the grievance committee was approved, with the exception that instead of recommending the striking of respondent's name from the roll of attorneys it recommended that he be suspended from the practice of law for one year, or such other action as this court should deem proper. Respondent then filed a motion in this court requesting that the matter be again referred to the board of governors for the purpose of taking additional testimony, and an order was entered granting this motion. Upon taking additional testimony, the board of governors filed a report recommending the suspension of respondent for a period of one year. This motion was ordered to stand as a supplemental report and respondent ordered to file exceptions within ten days. Exceptions of respondent were filed, and the cause is now before us on the supplemental report and exceptions thereto.

The first charge is that respondent, who in 1930 had been appointed by the circuit court of Pulaski county to defend a colored man charged with assault to commit robbery, took his client into a room adjacent to the courtroom, with the defendant's two brothers, and there had one of the brothers exchange clothes with the defendant; that the respondent then prepared and applied burnt cork to blacken the defendant's face, and also greased his hair with some substance, so that defendant's appearance was changed; that respondent then brought the defendant out into the courtroom and had the brother who had put on the defendant's clothes take a seat next to respondent, with the defendant seated away at some distance, in an effort to substitute the brother as the defendant in the case. The ruse was quickly discovered by the state's attorney, and the presiding judge ordered the defendant and his brothers to go out of the courtroom and change back to their other clothes and to wash the black from the defendant's face.

While the conduct of respondent as to this first charge was unethical and deserves censure, we do not believe, from a review of the evidence, that it produced any serious consequences or was seriously regarded at the time. Whether it was perpetrated from a misconceived desire of respondent to gain some cheap notoriety or from a real desire to confuse the state's witnesses in their identification of the defendant is immaterial. The respondent's testimony on the subject, together with the statement of the trial judge, is decisive in arriving at a just conclusion. Respondent justifies the act by saying that on the night of the alleged assault the defendant actually wore his brother's overalls, and he was only seeking to restore him to the same clothing and appearance he had on the night of the crime. The statement of the judge, A. L. Spiller, who presided at the trial, is even more impressive. He said: ‘While the jury was being impaneled, the State's attorney raised a question as to the defendant's identity, and suggested to the court that the defendant had been disguised in some manner, and it appeared at that time that his face had been blackened or darkened. I had not noticed it myself, and the defendant had changed clothing with someone else. I ordered the defendant to go and wash his face and put on the clothing that he had been wearing when he was first brought into the courtroom. I had a conversation with Mr. Smith about the affair and Mr. Smith informed me that he had advised the defendant to change his clothing and to put some burnt cork on his face so that he would appear in the same condition that he did the night of the attempted robbery. He also said that the man who was assaulted, in his opinion, would not identify the defendant if he looked as he did on the night the assault was committed, and Smith said it was his idea that someone else had committed the assault and not the defendant. The man was tried and convicted and is now in the penitentiary. It occurred to me afterwards that I should have granted him a new trial, but it wasn't done. I did not reprimand Mr. Smith for his conduct during the trial. * * * I can say only that I didn't think after the investigation that I made that Mr. Smith made any attempt to impose on the court. I didn't feel that way about it. I was unable to say that he did anything improper. I thought it was imprudent and I think I told him so. I do not think he was attempting to substitute the brother of the defendant or any other person in the place of the actual man who was charged with the crime. I don't think Mr. Smith made any attempt to impose upon the court.’ In view of this testimony by the trial judge and the fact that the complaint against respondent was not filed for nearly three years after this incident, we do not regard it as serious enough to warrant either respondent's disbarment or suspension.

The second charge against respondent is that he was indicted in October, 1931, in the United States District Court for the Eastern District of Illinois at East St. Louis, the indictment consisting of three counts, the first of which was that respondent charged and received a fee for services rendered Katie Harper, mother of a war veteran, of $60, or $50 in excess of the fee allowed by law. The second count charged that on or about June 3, 1930, respondent received another fee of $21 from the same Katie Harper when he again should have only charged $10. In the third count he was charged with receiving a fee of $50 for services rendered Rachel Taylor, mother of Virgil Taylor, a deceased veteran, when he could...