Meyer v. Missouri Real Estate Commission

• Decision Date: 06 November 1944
• Parties: Franklyn E. Meyer, Appellant, v. Missouri Real Estate Commission, Respondent
• Court: Kansas Court of Appeals

183 S.W.2d 342

238 Mo.App. 476

Franklyn E. Meyer, Appellant, v. Missouri Real Estate Commission, Respondent

Court of Appeals of Missouri, Kansas City

November 6, 1944

Appeal from the Circuit Court of Cole County; Hon. Edward T Eversole, Judge.

Reversed and remanded.

Clem F. Storckman for appellant.

(1) The purpose of the Probation Act, section 724, Title 18, U.S.C. A., is to avoid placing the stigma of "convict" upon the accused where "the best interests of the public, as well as the defendant, will be subserved thereby." 24 C. J. S. 55; Riggs v. U.S., 14 F.2d 5; Title 18, U.S.C. A., Section 724. (2) The plea of Meyer in the Federal case is not a conviction within the meaning of Section 14 of the Missouri Real Estate Commission Act, because where the context in which an alleged order of conviction is found concerns the effect of the conviction on accused when pleaded or given in evidence in another case the word "conviction" or "convicted" is more comprehensive and contemplates that the judgment of the court has been entered upon the verdict of the jury or the confession of guilt. Smith v. Commonwealth, 134 Va 589, 113 S.E. 707, 24 A. L. R. 1286; 1 Bishop, New Criminal Law (9 Ed.), sec. 975; 1 Bishop, New Criminal Law (9 Ed.), sec. 96 (2); State v. Towley, 147 Mo. 205; Scott v. American Express Co. (Mo. App.), 233 S.W. 492; State ex rel. Scott v. Cox, 243 S.W. 144. (3) Since the order of the Federal Court entered April 27, 1943, provides that the imposition of sentence upon Meyer be suspended and that Meyer be placed on probation for a period of three years, no final judgment has been entered in the case and hence there is no conviction within the meaning of section 14 of the Missouri Real Estate Commission Act. Baker v. Modern Woodmen of America, 140 Mo.App. 619, 121 S.W. 794; 24 C. J. S. 47, Criminal Law, sec. 1571; People ex rel. Decker v. Page, 211 N.Y.S. 401; Commonwealth v. Carelli, 90 Pa.Super. 416; Marks v. Wentworth, 199 Mass. 44, 85 N.E. 81; 16 C. J., page 1289, Criminal Law, sec. 3044; 24 C. J. S. 53, Criminal Law, Sec. 1571; 20 C. J. 80, Elections, Sec. 45. (4) Even if sentence has been pronounced and execution suspended, there would still be no "conviction" justifying the forfeiting in another case of the civil rights of the accused. Prewitt v. Wilson, 242 Ky. 231, 46 S.W.2d 90; People v. Fabian, 192 N.Y. 443, 85 N.E. 672; State v. Houston, 103 N.C. 383, 9 S.E. 699; Page v. State Board of Medical Examiners of Florida, 141 Fla. 294, 193 So. 82, 83; State Medical Board v. Rodgers, 190 Ark. 266, 79 S.W.2d 83, 85; 34 C. J. 972.

Roy McKittrick, Attorney-General, and Covell R. Hewitt, Assistant Attorney-General, for respondent.

(1) The plea of nolo contendere in the Federal Court was a final judgment upon which a judgment could be entered. Korematsu v. United States of America, 63 S.Ct. 1124, 319 U.S. 432, 433; Berman v. U.S., 302 U.S. 212-213, 58 S.Ct. 166, 82 L.Ed. 204; Neibling et al. v. Terry, 177 S.W.2d 502. (2) The plea of nolo contendere put the defendant in jeopardy. Korematsu v. United States of America, 63 S.Ct. 1124, 319 U.S. 432; Berman v. United States, 302 U.S. 212-213, 58 S.Ct. 166, 82 L.Ed. 204. (3) The plea of nolo contendere to embezzlement and misapplication of funds in the Federal Court was equivalent to a plea of guilty and conviction. Hudson v. United States, 272 U.S. 451, 452, 47 S.Ct. 127, 71 L.Ed. 347, 350; State v. Burnett, 98 S.E. 473, 474; Commonwealth v. Ingersoll, 14 N.E. 449; United States of America v. Norris, 74 L.Ed. 1077, 281 U.S. 619, 621; State v. Estes (Tex.), 109 S.W.2d 167; Roitman v. United States, 41 F.2d 519; Berlin v. United States, 14 F.2d 497; Gemignani v. United States, 9 F.2d 384; Pharr v. United States, 48 F.2d 767; Commonwealth v. Marino, 254 Mass. 533, 150 N.E. 841; Schad v. McNinch, 103 West Va. 44, 136 S.E. 865; Brozosky v. State, 197 Wis. 446, 222 N.W. 311; Neibling v. Terry, 177 S.W.2d 502, 503. (4) A plea of nolo contendere in the Federal Court to embezzlement and misapplication of funds was within the purview of Section 14 of the Missouri Real Estate Act. Sec. 14 of the Mo. Real Estate Act, Laws of Missouri 1941, page 430. (5) The judgment of the trial court was correct. Neibling et al. v. Terry, 177 S.W.2d 502.

OPINION

Bland, P. J.

This is a suit for a declaratory judgment, brought to determine the right of the Missouri Real Estate Commission to revoke plaintiff's license as a real estate broker and salesman, on the ground that he had been convicted of the offense of embezzlement. The court rendered a judgment declaring that defendant has the authority to revoke plaintiff's license. Plaintiff has appealed.

The facts show that plaintiff was indicted in the District Court of the United States for the Eastern Division of the Eastern District of Missouri, on January 11, 1943. The indictment charged him, in eight counts, with embezzling funds of the University City Federal Savings & Loan Association. None of the charges against plaintiff had to do with any act of his performed in connection with his vocation as a real estate broker and salesman. Count one of the indictment was stricken upon motion of the United States Attorney and plaintiff pleaded nolo contendere to each of the other counts. Whereupon, the court, on April 27, 1943, made the following order.

"For good cause shown, the Court doth Order that the imposition of sentence upon the defendant under each of counts two, three, four, five, six and seven and eight of the indictment be, and the same is hereby suspended and said defendant, Franklyn E. Meyer, placed on probation thereunder for a period of Three (3) Years in accordance with conditions of probation this day filed herein".

The evidence further shows that no other criminal proceedings have ever been instituted against the plaintiff and that from and after April 27, 1943, he has been on probation in accordance with the order and that such probation has not been revoked and that no other or further order has been made in the case.

The Legislature of this State, in 1941 (see Laws 1941, p. 424), passed an act creating the Missouri Real Estate Commission which provides, among other things, for the licensing of real estate brokers and real estate salesmen and for the suspension and revocation of the licenses of such brokers and salesmen. Many specific grounds are prescribed in Section 10 of the statute on which the Commission may revoke such licenses. Proceedings under this section contemplate a hearing on the question of the guilt of the person proceeded against but, under the provisions of Section 14, it is made mandatory for the Commission to revoke such licenses "where during the term of any license issued by the Commission the licensee shall be convicted in court of competent jurisdiction in the State of Missouri or any State (including Federal Courts) of forgery, embezzlement, obtaining money under false pretenses, extortion, criminal conspiracy to defraud, or other like offense or offenses and a duly certified or exemplified copy of the record in such proceedings shall be filed with the commission". (Italics ours.)

The trial court held that the plea of nolo contendere, made by the plaintiff to the indictment in the Federal Court, was a conviction within the meaning of the Missouri Real Estate Commission Act, and that the defendant has the right, power and authority to revoke plaintiff's license as a real estate broker and salesman under the provisions of that act. As before stated, plaintiff has appealed.

There is no contention made that this is not a proper proceeding under the Declaratory Judgment Act. Plaintiff insists that, as the Federal Court, pending the imposition of sentence upon him, upon his plea of nole contendere, placed him on probation, he has not been convicted of the offense charged against him within the meaning of the Real Estate Commission Act, as no final judgment has been entered against him.

Some question is raised in the brief as to whether a plea of nolo contendere in the Federal Court is equivalent to a plea of guilty or a confession of guilt. For the purpose of this case, there is no question but that the plea of nolo contendere was equivalent to such a plea of guilty and confession. [See Neibling et al. v. Terry, 177 S.W.2d 502.]

The term "conviction" has more than one meaning. In Scott v. Am. Express Co., 233 S.W 492, plaintiff sued to recover a reward offered for the arrest and conviction of a train robber. The alleged robber was tried and found guilty by a jury and was duly sentenced. He appealed. While the appeal was pending the robber died and the criminal proceedings abated. It was held by the Springfield Court of Appeals in that case that, the word "conviction" meant a final judgment, which settles the question of guilt of the defendant so that, as a result, punishment of the offense must follow. The court held that there had been no conviction within the meaning of the offer of the reward in the case, for the reason, that the accused, having died pending his appeal, the prosecution abated. Plaintiff in that case applied to the Supreme Court for a writ of certiorari, which was issued. The Supreme Court rendered an opinion in the case quashing the writ. [See State ex rel. Scott v. Cox, 243 S.W. 144.] In the course of the opinion the court said: "The word 'conviction' has more than one connotation. Its implications in a given case are to be determined from the connection in which it is used. We find abundant illustration of this in the authorities cited by relator. [7 Am. & Eng. Ency. of Law (2 Ed.) 497, and notes.] According to some of these, the technical common-law meaning of the term, when used to designate a particular stage of a criminal prosecution triable by a jury, is the confession...