In re Wallace
| Decision Date | 29 June 1929 |
| Docket Number | 29460 |
| Citation | 19 S.W.2d 625,323 Mo. 203 |
| Parties | In re Disbarment of J. D. Wallace |
| Court | Missouri Supreme Court |
Rehearing Overruled August 29, 1929.
Information to Disbar Attorney.
Judgment of disbarment.
Robert L. Ward and Mercer Arnold for Committee on Grievances and Legal Ethics of Missouri Bar Association.
(1) Power to remove or suspend from practice any attorney at law in this State is conferred by Sec. 681, R. S. 1919, and this proceeding is brought under the provisions of the first clause thereof. (2) The procedure to be followed in any case brought under the provisions of the first clause of Sec. 681 is fixed by Sec. 686, R. S. 1919. (3) The defendant was convicted of the offense of seduction under promise of marriage, at the September, 1925, term of the Circuit Court of Douglas County, and a certified copy of that conviction has been filed with the complaint in this case. The defendant appealed to this court from that conviction and the conviction was affirmed. State v. Wallace, 316 Mo 72. (4) The offense with which the defendant was charged and for which he was convicted, is an offense involving moral turpitude. Barnes v. Dist. Ct. App. Second Appellate Division (Cal.), 173 P. 1102; In re Shepard, 170 P. 443; In re O'Connell, 194 P. 1011; In re Henry, 99 P. 1055; In re Coffey, 56 P. 448; State ex rel. Mayes v. Mason, 43 P. 651; In re Kirby, 73 N.W. 92; In re Williams, 64 Okla. 16 167 P. 1150; In re Hopkins, 103 P. 805. (5) The disbarment of an attorney under such circumstances is not an additional punishment and is not punitive in character. It is protective in character of the Bar and of the public. In re Shepard, 170 P. 446; In re Henry, 99 P. 1055; 6 C. J. 581, sec. 37. (6) The Statute of Limitations is not a defense in such a proceeding. 6 C. J. 601, sec. 61; In re Lowenthal, 78 Colo. 427, 21 P. 7; Peo v. Phipps, 261 Ill. 576, 104 N.E. 144; In re Smith, 73 Kan. 743, 85 P. 584; In re Elliott, 73 Kan. 151, 84 P. 750. The motive prompting the complaint is not important. In re Sizer & Gardner, 306 Mo. 356, 365.
Barton & Moberly for defendant.
(1) This is a statutory proceeding and upon the statute it must stand or fall. Secs. 681, 686, R. S. 1919. (2) "Criminal offense involving moral turpitude" as used in these statutes is a legislative recognition that some crimes do not involve "moral turpitude." (3) As the purpose of the statute is to remove the unworthy, and keep the bar up to the proper standard, a crime involving "moral turpitude" is one which would unfit an attorney for the performance of his duties as such. 25 R. C. L. 1012; 2 R. C. L. 1088; Re Vaughan, 24 A. L. R. 858, 862; Ex parte Finley, 81 S.E. 279. (4) Seduction under promise of marriage does not imply any question of honesty, integrity, fidelity or any other trait which would render one unfit to minister at the bar. Sec. 3259, R. S. 1919; State v. Brandenburg, 118 Mo. 181; State v. Mitchell, 229 Mo. 683, 695; State v. Shiflett, 273 S.W. 729; 35 Cyc. 1340 and note 23; 2 Thornton on Attorneys, 1263 et seq.; 24 R. C. L. 731; Underhill on Cr. Ev., sec. 585; 9 A. L. R. 202, note subhead "personal vice." (5) This court is not prevented from investigating or compelled to suspend or disbar under these statutes. Secs. 681, 686, R. S. 1919. (6) While the statute of limitation may not apply, yet a long lapse of time filled with exemplary service will justify a dismissal. Re Sherin, 40 L. R. A. (N. S.) 801, 804; Jewett v. Clopton, 15 Mo.App. 589; 6 C. J. 585. (7) We ask that the entire record in the criminal case be admitted in evidence and considered for what it is worth. They show that prosecutrix swore defendant told her he was divorced. This he denied, but if he said it under the circumstances she relates, then we admit this involves "moral turpitude." It is outside of the pleadings, but we waive that defect. It is outside the record proper in the criminal case, and this court is certainly not precluded as to it by that judgment. We therefore ask this court to go into that evidence, as triers of the fact, and determine for yourselves whether this man ever made that statement, deceived that girl in any way, or is guilty of the crime for which he has been punished. We insist that he is innocent and that his conviction was a miscarriage of justice.
Gantt, J. All concur, except Atwood, J., not sitting.
GANTT
On July 27, 1925, the Prosecuting Attorney of Greene County filed in the circuit court of said county an information charging J. D. Wallace, the then Prosecuting Attorney of Oregon County, with the crime of seduction under promise of marriage. The venue was changed to the Circuit Court of Douglas County, where, on September 25, 1925, he was convicted and sentenced to the penitentiary. The judgment was affirmed by this court December 20, 1926. On October 5, 1928, a member of the bar, in good standing, filed in this court a written and verified charge informing the court of said conviction, alleging that the crime involved moral turpitude, and praying that Wallace be removed from the practice of law in the courts of this State. A certified copy of the record of said conviction is attached to the information. The answer admitted the conviction, but denied that the crime involved moral turpitude. Other matters not material to the issues presented were therein alleged.
The relevant provisions of the statute follow:
It will be noted that the word "may" is used in Section 681 in conferring on the courts the power to remove or suspend attorneys. The power conferred is for the protection of the bench, the bar and the public. For this reason the word "may" as used is mandatory.
By the terms of Section 686, the conviction of an attorney of a...
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In re Conner
... ... limited to instances of conviction of crime, nor to instances ... of professional misconduct, but may be exercised in cases of ... misconduct which show the character of an attorney to be such ... as to unfit him for the office of attorney. In re ... Wallace, 323 Mo. 203, 19 S.W.2d 625, State ex rel. Clark ... v. Shain, supra. The instant proceeding is neither adversary, ... civil nor criminal in nature, but is one sui generis, an ... investigation into the conduct of a court officer, having for ... its object "not the punishment of the offender ... ...
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Leimer v. Hulse
... ... error. Nalle v. Oyster, 230 U.S. l.c. 270; ... Henderson v. Cape Trading Co., 316 Mo. 384, 289 S.W ... 332; Rule 35, Sec. 1, Supreme Court, Missouri. (10) The trial ... court erred in its findings and conception of moral ... turpitude. In re Wallace, 323 Mo. 203, 19 S.W.2d ... 625; In re McNeese, 346 Mo. 425, 142 S.W.2d 33; ... Henderson v. Cape Trading Co., 316 Mo. 384; ... United States ex rel. Mylius v. Uhl, 203 F. 152; 41 ... C.J. 212; Bouvier, Law Dictionary (3 Rev. Ed.), p. 2247; ... Newell on Slander and Libel (3rd Ed.), ... ...
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In re Williams
... ... 764.] This statement is equally as applicable to ... a sheriff, or any other official, who is an attorney ... Lawyers ... may be disciplined for offenses involving moral turpitude. [7 ... C. J. S., p. 733; 5 American Jurisprudence, p. 417; In Re ... Disbarment of Wallace, 323 Mo. 203, 19 S.W.2d 625.] ... Moral turpitude is an act of baseness, vileness or depravity ... in the private and social duties which a man owes to his ... fellowman, or to society in general, contrary to the accepted ... and customary rule of right and duty. It is an act done ... ...
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Frick, In re, 65934
... ... baseness, vileness, or depravity in the private and social duties which a man owes to his fellowman or to society in general, contrary to the accepted and customary rule of right and duty between man and man; everything 'done contrary to justice, honesty, modesty, and good morals'." In re Wallace, 323 Mo. 203, 19 S.W.2d 625 (banc 1929). See also Neibling v. Terry, 352 Mo. 396, 177 S.W.2d 502 (banc 1944); In re McNeese, 346 Mo. 425, 142 S.W.2d 33, 34 (banc 1940). The moral delinquency may refer to nonprofessional conduct as well as conduct committed while acting in one's capacity as a ... ...