In re Voss

• Decision Date: 23 April 1902
• Citation: 90 N.W. 15,11 N.D. 540
• Parties: In re VOSS.
• Court: North Dakota Supreme Court

11 N.D. 540

90 N.W. 15

In re VOSS.

Supreme Court of North Dakota.

April 23, 1902.

Syllabus by the Court.

1. It is the duty of attorneys and counselors at law to maintain the respect due to courts of law, and to refrain from offensive language, either towards the court, counsel, or witnesses.

2. A state's attorney who renders professional assistance to a defendant in a criminal action violates his duties as state's attorney and his duties as an attorney at law.

3. A state's attorney, who, on several occasions, enters a public gambling house, and bets money on a roulette wheel, or gambles for money there, and willfully refrains from informing and prosecuting the keeper of such place, is guilty of a misdemeanor involving moral turpitude, as such failure to inform and prosecute such keeper involves the violation of an official oath and the violation of the express command of section 7243, Rev. Codes 1899.

4. A justice of the peace is not bound, as a matter of duty, to dismiss a prosecution of a criminal offense on motion of the state's attorney, although such a course may, in the absence of special circumstances or conditions known to him, be the better course to pursue.

5. A state's attorney of this state who neglects to prosecute offenders against the prohibition law, when the proofs of such violations are furnished to him, is, under section 7620, Rev. Codes, guilty of a misdemeanor, and such misdemeanor is one involving moral turpitude, authorizing disbarment or suspension. In re Simpson, 83 N. W. 541, 9 N. D. 379, followed.

6. Evidence in this case considered, and found to justify the suspension of the defendant from practicing as an attorney at law, by virtue of his license, for neglect to prosecute to judgment proceedings instituted by him for the abatement of nuisances created by violations of the prohibition law of this state as enacted in chapter 63, Rev. Codes 1899.

7. A state's attorney is not excused from performing his official duties as state's attorney because local sentiment largely predominates in favor of the nonenforcement of laws that have been violated, nor is he excused from in good faith attempting to perform such duties because convictions are difficult to be obtained.

In the matter of the accusations against H. G. Voss, attorney and counselor at law Judgment of suspension.Newton & Smith, for prosecution. Tracy R. Bangs and E. C. Rice, for defendant.

MORGAN, J.

In September, 1900, affidadavits were presented to the Bar Association of this state, charging the defendant with violations of his duty and obligations as an attorney at law and as state's attorney of Morton county. The Bar Association appointed a committee, consisting of three of its prominent members, to investigate the charges contained in such affidavits and report thereon to such association. This committee subsequently presented its report to such association and presented to the supreme court an accusation against the said defendant, specifically charging him with misconduct as an attorney at law and as state's attorney, and asked that the supreme court order a judicial investigation of such charges in the manner provided by law. The accusation thus presented to the supreme court by such committee contained charges against said defendant as follows, to wit: “First. That in and during the month of January, 1898, there were certain persons and firms, to the number of about 12, engaged unlawfully in selling, furnishing, and giving away intoxicating liquors in the city of Mandan, in said Morton county, N. D., and unlawfully keeping and maintaining places where such unlawful sales, furnishings, and giving away were carried on and conducted in the said city and county, and to the knowledge of said H. G. Voss, state's attorney as aforesaid; that the names of such persons and firms are unknown to this committee, except as hereinafter shown; that proceedings and prosecutions were and had been commenced against such persons and firms, under the provisions of the prohibition law of the state of North Dakota, by said H. G. Voss, then state's attorney of said Morton county, and were pending on the 6th day of January, 1898; that thereupon certain persons applied to the above-named H. G. Voss, he then and there being state's attorney of said Morton county, for relief and protection against such prosecutions; that thereupon, on or about the 6th day of January, 1898, a meeting of certain citizens of said Morton county was held in said city of Mandan, at which meeting said H. G. Voss, then being state's attorney as aforesaid, was present and participated; that the said H. G. Voss, at such meeting, then and there informed the persons present, and advised, that upon the said persons and firms so engaged in unlawfully selling, furnishing, and giving away intoxicating liquors, as hereinbefore shown, and unlawfully keeping and maintaining places wherein such unlawful sales, furnishings, and giving away were carried on and conducted, paying the sum of $17.50 each, as and for certain expenses theretofore and up to such time incurred by said Morton county or the officers, as the costs and expenses, and especially sheriff's fees, in such proceedings and prosecutions, such persons and firms so engaged in such unlawful selling, furnishing, and giving away intoxicating liquors, and being proceeded against as hereinbefore shown, should and would be relieved and protected from such proceedings, and their further prosecution discontinued; that thereupon a committee of residents of such Morton county, upon the advice of said H. G. Voss, he then and there being state's attorney, as above shown, was selected and authorized to collect of and from each of such persons and firms so engaged, as hereinbefore shown, in unlawfully selling, furnishing, and giving away intoxicating liquors, the said sum of $17.50 each; that thereupon said sums were collected of and from said persons and firms to the number of about 11, and from all such persons, and by them paid, except one, Herman Yunck; that said Herman Yunck refused to pay such sum, or any sum, on account of such purpose, or for the purpose hereinbefore shown; that thereafter the said proceedings and prosecutions of said persons and firms to the number of about 11, on account of such unlawful acts as hereinbefore shown, were thereupon dropped, and not further prosecuted by the said H. G. Voss, state's attorney as aforesaid, or otherwise, except that the proceeding and prosecution against said Herman Yunck was further pressed and moved by the said H. G. Voss, as state's attorney, but to what extent is unknown to this committee; that after and in pursuance to the proceedings hereinbefore shown the said persons so unlawfully engaged in selling, furnishing, and giving away intoxicating liquors unlawfully were permitted by the said H. G. Voss, as state's attorney as aforesaid, to continue such unlawful business, and so did. Second. That on or about the 17th day of June, 1895, there was a criminal complaint and action pending before Frank Wilder, Esq., a justice of the peace in and for said Morton county, N. D., against one William Churchill, wherein such William Churchill was charged with threatening to shoot one Louis Goeschel with a loaded revolver and deadly weapon; that the said H. G. Voss, then being state's attorney in and for said Morton county, as hereinbefore shown, acted in regard to such complaint and action and charge against said William Churchill, as counsel and adviser of such William Churchill, and as attorney for him therein; that the said Louis Goeschel was the complaining witness in such complaint, action, and proceeding, and was compelled and did then and there employ an attorney, viz., B. W. Shaw, Esq., to conduct the prosecution thereof, and that said B. W. Shaw, Esq., did so conduct such prosecution; that the said William Churchill was by such justice held to answer in the district court for such crime, and that thereupon the said H. G. Voss, then being state's attorney as aforesaid, with great vehemence and openly and publicly did advise the said William Churchill to repeat such offense; that thereafter the said William Churchill did further assault such Louis Goeschel with a revolver, and then and there shot at said Louis Goeschel three times with the same; that the said William Churchill was then and there under bonds to keep the peace as provided by law, which bonds the said Justice Wilder had required of such William Churchill to give in that behalf at the hearing of the complaint and action first hereinbefore mentioned; that thereupon, and after the assault upon and shooting at said Louis Goeschel by said William Churchill, as hereinbefore shown, which said acts were in violation of the conditions of his bond to keep the peace, the said H. G. Voss, then being state's attorney of Morton county, refused to prosecute the said William Churchill, criminally or otherwise, for his said conduct hereinbefore shown, or to proceed upon his bond given as hereinbefore shown, and neglected so to do, and that such matters were never inquired of or prosecuted otherwise than as hereinbefore shown. Third. That during the years of 1896, 1897, and 1898, one George McDonald was residing at Mandan, Morton county, N. D., and engaged in the occupation of keeping and maintaining a building wherein gambling and games of chance were unlawfully carried on and conducted and indulged in as a business; that the said George McDonald and his said unlawful business and the building and rooms wherein the same was carried on and conducted were during said time known to and patronized by the said H. G. Voss, he then and there being state's attorney of said Morton county; that frequently during said years the said H. G. Voss, then and there being state's attorney, resorted to such building and place, and then and there and therein played at games of chance, and gambled and won and lost large sums of money...