Jackson v. State

• Decision Date: 01 January 1858
• Parties: JOHN JACKSON v. THE STATE.
• Court: Texas Supreme Court

21 Tex. 668

JOHN JACKSON

v.THE STATE.

Supreme Court of Texas.

1858.

Under our statute, which provides that prosecutions against an attorney for certain offenses “may be instituted by motion or information of two or more practicing attorneys,” held that a defendant who appeared and answered to a motion made by but one attorney, waived the objection. 25 Tex. 380.

It seems that a court may, without such information, protect itself, its suitors, and the administration of justice against the malpractices, abuses, etc., mentioned in the 5th and 8th sections of the act of 1846.

In the absence of special provisions the power of removal is, from its nature, commensurate with the power of appointment.

The power of removal rests upon grounds distinct from contempts.

Where, in a prosecution against an attorney, the jury embraced two grounds in their finding, one a contempt, and the other malpractice, and the court proceeded to judgment without it appearing upon which of the grounds, in so far as the judgment was founded on the first ground it was error.

Applying abusive and opprobrious epithets to a judge in vacation cannot be considered “a contempt involving fraudulent or dishonorable conduct, or malpractice,” within the meaning of our statute.

In a special verdict, as follows: “The jury find from the testimony that defendant was retained as an attorney at law by James B. McMahon in a case in Justice Dewees' court, of Sexton v. McMahon, before said defendant was retained by said Sexton.” Non constat that he was retained by Sexton at all in that suit; or if he was, he may have been first discharged by McMahon.

Besides the omission to find the act to have been done with a corrupt motive or evil intent; or repel the supposition that it may have been from inadvertence, or some excusable or justifiable cause, is fatal to the judgment.

Where the jury have found a special verdict, all the facts and circumstances essential to constitute the offense must be found in order to support the judgment. 18 Tex. 68.

Error from Sabine. Tried below before Hon. A. W. O. Hicks.

Proceedings were instituted in the district court of Sabine county against plaintiff in error, attorney at law, upon a motion made by J. M. Ardrey, also an attorney of the court (and by him alone) setting forth several charges, all of which were abandoned by the prosecution but two, which were:

1st. That John Jackson a practicing attorney, etc., in the county, etc., in the month of July, A. D. 1856, did say “that the Hon. A. W. O. Hicks, judge of the 5th judicial district of the state of Texas was a God damned corrupt and perjured scoundrel, and that as a judge he made up his decisions out of court, and that he, the said John Jackson, could establish the fact.”

2d. That after J. B. McMahon (upon whose affidavit the charges are preferred) had retained said Jackson to defend a suit brought against him in Justice Dewees' court by F. B. Sexton, the said Jackson had abandoned the defense of such suit and accepted a retainer from Sexton, and prosecuted the same for him, Sexton. The matters thus charged against the defendant below, are alleged to be malpractices by him as an attorney at law, and criminal practices against the peace and dignity of the state of Texas, and contrary to his duty as an attorney at law, etc.

Upon this motion, a rule was entered and served upon Jackson, requiring him to show cause why his name should not be stricken from the roll of attorneys, his license revoked, etc.

Jackson answered on oath, as follows, to these charges:

“And now comes the defendant, John Jackson, and answering to rule to show cause why he shall not be stricken from the roll of attorneys, and fined for contempt of court, etc. In answer to first charge in affidavit of James B. McMahon, saith that respondent has been a resident citizen of Texas some four years, is forty-five years of age, and the most of the time he has resided in Texas has been engaged in the practice of law, residing at Milam in said county; that he is, and has been for over three years an elector, legally qualified to vote for county, district and state officers; that in 1856, saw and read the proclamation of the governor of the state of Texas, ordering an election for judge of the 5th judicial district of said state, to fill the vacancy occasioned by the resignation of the Hon. A. W. O. Hicks; that respondent learned that Mr. Richard S. Walker and A. W. O. Hicks were opposing candidates for such office; that the merits and demerits of said candidates were frequently and often warmly discussed by the electors of such district, with whom respondent mingled, and in which discussions he took an active part, zealously supporting Walker and opposing said Hicks; that a short time previous to the election the said candidates came to Milam, and at a public meeting addressed the electors present, and others, upon the subject of the said election, and their claims upon the suffrages of the people for such office. About which time the feeling among the people upon the subject of the said election ran pretty high, and there was considerable excitement. A short time after which an altercation took place between respondent and the said affiant, James B. McMahon; that said McMahon remarked that Walker had acted the damned dog. Which respondent resented, vindicating the said Walker and condemning the said Hicks as unfit for the office of judge, which unfitness respondent contended was evidenced by the course said Hicks had pursued in fining Walker & Oliphant and Richard S. Blackburn for contempt of court; that much was said on both sides, all and every word of which respondent can't now recollect, but is confident that he never at any time made use of the expressions imputed to him by affiant McMahon, to wit: that the Hon. A. W. O. Hicks, judge of the 5th judicial district of the state of Texas, was a God damned corrupt and perjured scoundrel, and that as a judge he made up his decisions out of court, and that he could establish the fact. Respondent thinks that at the time of said altercation, Jesse T. Scruggs, Milton J. Porter and George S. Williams were present.

To second charge respondent says that in the case of Sexton v. McMahon, before the said Justice Dewees, he, respondent, was not retained by said McMahon, but on the contrary was retained by said Sexton, of which said McMahon had full knowledge, and applied to respondent as the attorney of said Sexton, requesting him, respondent, to consent to a continuance of the cause.”

The jury returned the following special verdict: “We, the jury, find that said defendant did use of and concerning A. W. O. Hicks, as judge of the district court, and in relation to the judicial action of said judge in court, the following language, to wit: ‘That Judge Hicks was a God damned corrupt and perjured scoundrel, and that as a judge, he made up his decisions out of doors, and he could prove it;’ also, the jury find from the testimony, that defendant was retained as an attorney at law by James B. McMahon in a case in Justice Dewees' court, of Sexton v. McMahon, before the said defendant was retained by said Sexton.”

Upon this verdict the court gave judgment against defendant, striking his name from the roll of attorneys, revoked his license, and rendered judgment against him for costs.

T. J. Jennings and R. S. Walker, for plaintiff in error.

Attorney General, for the state.

WHEELER, J.

The statute (Act of 1854, p. 118, sec. 1) provides that any prosecution under the 5th or 8th sections of the act to which this is an amendment (Hart. Dig. art. 56, 59) “may be instituted by motion or information of two or more practicing attorneys;” and it is objected that the motion in this case is signed by but one. It is to be observed, however, that the defendant appeared and answered to the motion without objection to the form of the proceeding. This must be deemed a waiver of the objection, unless it be a matter so vital to the proceeding that it could not be waived; and that, it is conceived, is a proposition which...