Littell, In re

• Decision Date: 03 April 1973
• Docket Number: No. 872S110,872S110
• Citation: 294 N.E.2d 126,260 Ind. 187
• Parties: In the Matter of Noble K. LITTELL.
• Court: Indiana Supreme Court

Page 126

294 N.E.2d 126

260 Ind. 187

In the Matter of Noble K. LITTELL.

No. 872S110.

Supreme Court of Indiana.

April 3, 1973.

Robert F. McCrea, McCrea & McCrea, Bloomington, Henry C. Ryder, Roberts & Ryder, Indianapolis, for respondent.

Jerrald Crowell, Fort Wayne, John B. Ramming, Executive Secretary, Indianapolis, for Indiana Supreme Court Disciplinary Commission.

PER CURIAM.

This is a disciplinary proceeding filed by the Disciplinary Commission of this Court upon the original complaint of one Julia Fulford, wife of Max Fulford, who will be hereinafter mentioned. We have before us the complaint and answer and the findings and recommendations of the hearing officer, together with the petition for review filed by both the Disciplinary Commission and the complainant and the response thereto by the respondent. The petition of the complainant seeks action by this Court requiring the respondent to compensate her and her husband for financial loss alleged by her to have been incurred by them as a result of the respondent's misconduct. Her petition is denied. Although it may be appropriate, in a given case, for us to require restitution of a liquidated sum as a condition precedent to reinstatement following suspension, the redress of private wrongs is not the mission of our disciplinary rules. Further, there was no evidence presented from which a determination of such issue could have been made, and we have merely the complainant's allegations and conclusions upon the subject.

The petition of the Disciplinary Commission is now granted. We have reviewed the evidence and, in essence, our findings coincide with those of the hearing officer. However, inasmuch as we are not in accord with his recommendation, we think it appropriate to make an independent statement of the facts. They are essentially undisputed and are as follows:

The respondent is a member of the bar of this Court, having been duly admitted in the year 1954. On January 1, 1963, he took office as Judge of the Morgan Superior Court, Morgan County, Indiana, which office he now holds and has held continuously since that date. On several occasions prior to the occurrences that gave rise to the Fulford complaint, one James Arthur had appeared before the respondent, as Judge of said Court, charged with minor criminal offenses. Arthur was a local musician and vocalist, and he had written a musical composition and lyrics depicting the court and his experiences there. The respondent was, in some manner, characterized in the ballad, and it came to his attention. He and a companion went one evening to a local tavern where Arthur was employed and there had him sing his song for them. After hearing it, the companion suggested to Arthur that he have it recorded for commercial distribution, and the matter was discussed between them. Later, Arthur went to the respondent and requested financial assistance towards having the record made, and the respondent indicated his interest in the project. Encouraged by the respondent's reaction, Arthur next went to Max Fulford, husband of the complainant, who was engaged in the recording business upon a part time basis. He agreed with Fulford to pay the sum of $350.00 for production of an undisclosed number of records, subject to the respondent's approval and willingness to give financial backing. It is not clear from the record whether the respondent was motivated by his intrigue with the song and novelty of recording and publishing it or by a genuine selfless desire to help rehabilitate Arthur. It is clear that there was an understanding between him and Arthur that he would be repaid from the earnings of the record and that he would receive a record.

The production procedure required a recording session in Fulford's studio at which a magnetic sound tape was made and a subsequent 'pressing' or manufacture of the record from a playback of the tape. Fulford was not equipped to perform the 'pressing' operation, and it was his practice to have it done by a studio in Chicago. The respondent attended a rehearsal session of the musicians and the recording session, both held in Fulford's studio, and he paid Fulford the sum of $350.00 on behalf of Arthur. The tape was made at the recording session held on Sunday, May 16, 1971. Thereafter, several inquiries by Arthur to Fulford concerning delivery of the finished records were met with various excuses for the delay, but the records were never forthcoming.

Fulford had previously become financially irresponsible, as well as insolvent. Earlier, he had written checks against his depleted bank account in anticipation of future deposits reaching the bank before the checks cleared for payment. On February 17, 1971 he had issued a check for $20.00 to a grocery establishment. It was dishonored by the bank, and the payee filed criminal charges in the Morgan Superior Court. Fulford appeared, without counsel, before the respondent as Judge of that Court on May 15th, the day before the recording session, and entered a plea of not guilty. Upon determining that Fulford had no prior arrests, the respondent released him upon his own recognizance. On June 18th, Fulford returned to court for trial, again without counsel, but this time before a judge pro tem. In the meantime, early in May, he had seen the prosecutor in the Clerk's office, and the prosecutor, who had previously sent him a notice to make restitution upon the check, informed him that it was not the policy of his office to prosecute persons who made good faith efforts to make such restitution. Fulford, at this meeting, offered the necessary funds to make restitution, but the prosecutor declined, saying that his secretary took care of such matters and that his office was closed that day and would be closed on the following day because of the primary election. Fulford was under the impression that the matter was concluded, but the prosecutor inadvertently failed to notify his secretary of the conversation, and the following week Fulford received a notice to appear for trial on June 18th. It is not disclosed whether restitution was made before or after receipt of such notice, but it had been made prior to June 18th, when Fulford appeared, as ordered. He met the prosecutor and his deputy and refreshed the prosecutor's memory upon the earlier events. The prosecutor acknowledged partial blame for the confused state of affairs, and he and the deputy went into conference in chambers with the pro tem judge. Returning from the judge's chambers, the prosecutor announced to Fulford that if he would enter a plea of guilty, there would be no fine or sentence imposed but that the matter would be taken under advisement. Fulford did change his plea to guilty, and upon the prosecutor's recommendation, the court took the matter of sentencing under advisement and admonished Fulford, '* * * If anything like this happens again you can be called back in for sentencing over again and it would not be necessary to have a trial if the court would so see fit, * * *.'

The aforementioned action by the judge pro tem was in accordance with a custom prevailing in the Morgan Circuit Court, a practice which we know also obtains in other areas throughout the state. Although practical benefits may sometimes flow from such practice, the dangers inherent therefrom render it one that this Court can neither sanction nor condone. It amounts to a de facto suspension of sentence but with the court retaining an arbitrary power to determine when and upon what conditions the suspension may be revoked. We have recently spoken concerning limitations upon the authority of courts to revoke the suspension of sentences. State ex rel. Gash v. Morgan County Superior Court, etc. (1972), Ind., 283 N.E.2d 349. It is by coincidence only and of no consequence that the Gash case concerned the same court and the respondent herein. Our opinion in that case recognized that even persons under suspended sentences have a right to know where they stand and that they should not be subject to arbitrary power resting within the breast of the court. The indefinite deferral of sentencing, without statutory authority or other sufficient cause, is not within the court's discretionary powers. It was this improper practice, we believe, that led the respondent into grievous abuse of his power. Our authority as judges is awesome. Our power is even greater. It is commanding, therefore, that we constrain ourselves at all times to the proper exercise of that power and that we be ever mindful of our frailties, as men, and of the devastation that we wreak, when we permit the men that we are to overpower the judges that we have undertaken to be.

A week or so following the making of the master tape in Fulford's studio, Arthur made inquiry of Fulford as to when he would receive the records and was advised that the records could not be made, because the song had not been protected by copyright. Arthur relayed this information to the respondent, who informed him that a copyright was not necessary. In the meantime, Fulford and Donald Scales, his associate in the recording studio venture, had become estranged over financial matters; and Scales had removed his personally owned equipment from the studio. He had also taken the Arthur master tape, as security for money owing him from Fulford for his services in making it. In early August, Arthur went to Scales and asked if he had the tape. Scales replied that he did and gave his reason for holding it. Scales was also aware of the respondent's interest in the tape and suggested that they go discuss the problem with him, which they did. In this conference, respondent-judge stated that he had a fraudulent check charge hanging over Fulford's head, that he wanted the record 'pressed' and for Arthur to tell Fulford that he should 'get the tapes out' or he, the respondent, would 'pull the check thing on him.'...