Neibling v. Terry

• Decision Date: 07 February 1944
• Docket Number: 38887
• Parties: Harold E. Neibling, Winston H. Woodson, James T. Britt, and Clyde J. Linde, Members of the Supreme Court Bar Committee for the Sixteenth Judicial Circuit, State of Missouri, Informants, v. Clarence W. Terry
• Court: Missouri Supreme Court

177 S.W.2d 502

352 Mo. 396

Harold E. Neibling, Winston H. Woodson, James T. Britt, and Clyde J. Linde, Members of the Supreme Court Bar Committee for the Sixteenth Judicial Circuit, State of Missouri, Informants, v. Clarence W. Terry

No. 38887

Supreme Court of Missouri

February 7, 1944

Original Proceedings for Disbarment.

Disbarment ordered.

Maurice H. Winger, Howard Grant and P. L. Edwards for informants.

The motion for judgment on the pleadings should be sustained because defendant's answer admits that he was convicted of a crime involving moral turpitude. In re Fenn, 128 S.W.2d 657.

James E. Burke and Ralph M. Russell for defendant.

The plea of nolo contendere, which is recognized by the United States courts, but which is not recognized by the courts of Missouri and a number of other states, is a plea which authorizes a court to impose a sentence in the case in which the plea is entered, but such plea has no effect whatsoever beyond the particular case in which it is entered, and the entering of such plea does not estop or prevent the defendant from denying his guilt of the offense charged in some other proceeding, whether criminal or civil, arising out of the same matter. In re Smith, 5 N.E.2d 227; Collins v. Benson, 81 N.H. 10; White v. Creamer, 56 N.E. 833; Fidelity Phoenix Fire Ins. Co. v. Murphy, 166 So. 604; State v. LaRose, 52 A. 943; Tucker v. United States, 196 F. 260; Twin Ports Oil Co. v. Pure Oil Co., 26 F.Supp. 366.

OPINION

Douglas C.J.

This is an action instituted in this court by the Supreme Court's Bar Committee of the Sixteenth Circuit to disbar Clarence W. Terry, a lawyer of Kansas City.

Terry is charged with conduct contrary to justice, honesty, modesty and good morals. To support the charge the information alleges Terry was convicted in the United States District Court on his plea of nolo contendere on twenty-four counts for using the mails to defraud. Allegations of convictions in two other cases in the United States District Court on pleas of nolo contendere for making a false statement to obtain a loan from the Federal Housing Authority are contained in the information. We deem it unnecessary to consider and discuss the latter convictions. Terry's answer admits the convictions but denies he was guilty of the charges resulting in the convictions. He asserts the convictions may not be used in this proceeding because they were entered on pleas of nolo contendere. Informants move for judgment on the pleadings.

The sole issue is whether a judgment of conviction entered on a plea of nolo contendere is sufficient in itself to sustain an order of disbarment.

Section 13333, R.S. 1939, relating to the disbarment of attorneys states: "If the charge allege a conviction for any criminal offense involving moral turpitude, the court shall, on production of the record of such conviction, remove the attorney so convicted . . . without further trial."

Rule 35, adopted by this court by virtue of its inherent power to regulate the bar in the protection of the public and the courts and in the better administration of justice, supplements the statute. It provides in Section 47: "A lawyer should always maintain his integrity; and shall not willfully commit any act against the interest of the public; nor shall he violate his duty to the Courts or his clients; nor shall he, by any misconduct, commit any offense against the laws of Missouri or the United States of America, which amounts to a crime involving acts done by him contrary to justice, honesty, modesty or good morals; nor shall he be guilty of any other misconduct whereby, for the protection of the public and those charged with the administration of justice, he should no longer be entrusted with the duties and responsibilities belonging to the office of an attorney."

In the case of In re McNeese, 346 Mo. 425, 142 S.W.2d 33, we defined moral turpitude as including all acts done contrary to justice, honesty, modesty or good morals. Thus the rule as well as the statute covers offenses involving moral turpitude as a basis for disbarment. We hold the offense of using the mails to defraud involves moral turpitude. State v. Riddle, 213 Ala. 430, 105 So. 259; In re Crane (Cal.), 189 P. 272; In re Comyns, 132 Wash. 391, 232 P. 269; In re Ray, 262 A.D. 30, 27 N.Y.S. (2d) 606.

The decision of the question before us turns on the effect, if any, of a plea of nolo contendere on the judgment of conviction. Such a plea is not recognized in the Missouri criminal code. When an accused does not confess the charge to be true a plea of not guilty is entered for him. Sec. 4004, R.S. 1939. Although the plea originated in the early common law it was discarded in England centuries ago. Chief Justice Stone in Hudson v. U.S., 272 U.S. 451 points out that no example of its use in the English Courts has been found since a case decided in 1702. However its use has persisted in some state courts and in the United States Courts.

It is settled that a plea of nolo contendere amounts to an implied confession of guilt and for the purposes of the prosecution is equivalent to a plea of guilty. The plea should not be used by one who has not violated the law. U.S. v. Norris, 281 U.S. 619.

The chief distinction of a plea of nolo contendere lies in the fact it is not a general admission of the truth of the facts charged as is a plea of guilty. It is a qualified admission limited for use only in the proceeding in which it is entered and may not be used as an admission in any other proceeding. Its utility was originally found in the class of cases where both a criminal prosecution and a civil suit arose out of the same act such as trespass for assault and battery. In such cases a plea of nolo contendere entered in the criminal prosecution furnished no admission of guilt to be used in the civil suit. On the other hand a plea of guilty in the criminal prosecution, being a confession of the truth of the charge, was available as an admission of the accused in the civil suit.

We think the confusion in the cases considering convictions on pleas of nolo contendere result from a judicial practice of clothing the judgment of conviction with the characteristics of the plea or in speaking of the plea and the conviction as one and the same. For example, there are cases which hold that a judgment of conviction on a plea of nolo contendere may not be used as an admission of guilt. But a judgment of conviction could never be used as such an admission, regardless of the nature of the plea. It is the plea of guilty which carries the evidentiary force as an admission, not the judgment of conviction entered on the plea.

Ordinarily a judgment of conviction in a criminal prosecution is not proof of anything in a civil proceeding except the mere fact of its rendition. By statute, in certain instances, a judgment of conviction has been given force because of the fact of its rendition. In such instances the judgment of conviction is made a basis for enforcing a statutory disability. Such statutes in no wise authorize the use of a conviction as an admission to be used to establish liability in a civil suit. Nor do the statutes make any distinction in convictions according to the nature of the plea resulting in such convictions. Nor is there any logical reason for a distinction. For statutory purposes a conviction on a plea of not guilty carries the same force as one entered on a plea of guilty.

A person who has been convicted may be, by statute, disqualified from voting, from serving as a juror, from holding office, from testifying as a witness, from practicing a profession, and so on.

"Convicted" is generally used in its broad and comprehensive sense meaning that a judgment...