Nelson v. Commonwealth

• Decision Date: 22 April 1908
• Citation: 128 Ky. 779,109 S.W. 337
• Parties: NELSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

109 S.W. 337

128 Ky. 779

NELSON v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 22, 1908

Appeal from Circuit Court, Livingston County.

"To be officially reported."

Proceedings for the disbarment of M. C. Nelson, an attorney. From a judgment of disbarment, he appeals. Affirmed.

C. H Wilson and G. W. Landram, for appellant.

James Breathitt, Atty. Gen., and Chas. H. Morris, for the Commonwealth.

CLAY C.

By a judgment of the Livingston circuit court entered on December 16, 1907, the appellant, M. C. Nelson, was disbarred from the practice of the law in all the courts of this commonwealth. From that judgment, he prosecutes this appeal.

It appears from the record that appellant at the April term 1907, of the Livingston circuit court, was indicted for the crime of forgery. At the December term of said court the case was called for trial. Appellant waived formal arraignment and entered a plea of guilty. A jury was impaneled, and after hearing the evidence and being instructed by the court returned the following verdict: "We, the jury, fix the defendant's punishment at two years in the state penitentiary." During the same term appellant filed a pardon from the Governor of Kentucky. Excluding its formal provisions, the pardon is in words and figures as follows: "Now, know ye, that in consideration of the premises and by virtue of the power vested in me by the Constitution, I do hereby grant unto the said M. C. Nelson a full and free pardon for said offense, and do order that he be forthwith liberated from confinement, and released from all liability in consequence of said judgment of conviction, and I direct that all officers of this state respect this pardon." Upon the filing of the pardon the court ordered appellant released from custody. At the same time the court ruled Nelson to appear and show cause why he should not be disbarred as an attorney at law. At the hearing of the disbarment proceedings appellant introduced and refilled the pardon theretofore obtained. The trial court held that the pardon was no defense to the disbarment proceedings, and entered judgment accordingly. The record does not disclose what occurred at the hearing. It simply shows that appellant was made to appear, and upon his appearance tendered his pardon. The only error complained of is the failure of the court to adjudge that the pardon was a bar to the disbarment proceedings. We are therefore confined to a consideration of that question alone.

It is the contention of appellant that, by the terms of the pardon, he was released from all liability and consequences of the judgment of conviction; that section 97, Ky. St. 1903, provides that "no person convicted of treason or felony shall be permitted to practice in any court as counsel or attorney at law"; that this statute creates a liability which is connected with the offense of which appellant was convicted; and that the pardon, therefore, released him from such liability. We must admit that there are very respectable authorities which support, or tend to support, the position of appellant. Thus in the case of Penobscot Bar v. Kimball, 64 Me. 150, where an attorney was guilty of having forged a deposition and of having offered the same in court, and produced a pardon from the executive for the offense of forgery, the court held that the effect of the pardon was not only to release the attorney from the punishment prescribed for that offense and to prevent the penalties and disabilities consequent thereupon, but also to blot out the guilt thus incurred, so that in the eye of the law he was as innocent of that offense as if he had never committed it; that the pardon made a new man in respect to that particular offense, and gave him a new credit and capacity; that to exclude him from the office he held when he committed the offense would be to enforce a punishment for it notwithstanding the pardon. The court, however, upheld the disbarment proceedings upon the ground that the attorney had offered the forged deposition in court, and that this was a violation of his official oath, and another offense for which he had not been pardoned. In the case of Scott v. State, 6 Tex.

Civ. App. 343, 25 S.W. 337, the court held that, under the statutes of Texas, a pardon for an offense was a complete bar to any disbarment proceedings on account of that offense. Likewise it has been held that the effect of a pardon, unless limited by its terms, is to restore to the offender personal rights and privileges forfeited by his conviction, and these include the privilege to follow his professional calling or means of livelihood. Thus, where by statute a conviction of felony worked a disqualification to sell liquors by retail, it was held that a pardon removed the disqualification. Hay v. Justices, 24 Q. B. D. 561. And, where by participation in rebellion against the federal government an attorney at law practicing in the federal courts became disqualified, it was held that by accepting a full pardon from the President, and taking the required oath of allegiance, he became entitled to resume practice. Exp. Law, 35 Ga. 285, Fed. Cas. No. 8,126, U.S. Dist. Ct. So. Dist. of Ga.

On the contrary, it has been held that, while the general effect of a pardon as to the restoration of rights and privileges and the creating of a new credit and capacity may be conceded, the fact that a pardon has been granted to a person convicted of an offense cannot warrant the assertion that such a person is as honest, reliable, and fit to hold a public office as if he had constantly maintained the character of a law-abiding citizen. Hence it has been held that the fact that a person has been convicted of offenses disqualifying him to hold the position of a police officer is not altered or affected by the pardon, and he may still be held unfit for the office. 24 Am. & Eng. Encyc. of Law, p. 588; State v. Hawkins, 44 Ohio St. 117, 5 N.E. 228. In the Matter of E., Formerly an Attorney, 65 How. Prac. (N. Y.) 171, it appears that E. had been twice convicted of perjury, and had been warned to appear and show cause why he should not be disbarred. While the matter was pending the Governor pardoned E., who afterwards moved the court to vacate the order by which he had been disbarred, on the ground that he had been pardoned. The court, in passing upon this ground, said: "In the Matter of Niles, 48 How. Prac. (N. Y.) 246, it was held that by conviction and sentence for a crime punishable in the state prison the office of an attorney and counselor was forfeited, that such forfeiture was like that of the forfeiture of any other public office, and was not a temporary suspension. If this view is sound, and we are inclined to think that it is, then the conviction and sentence had worked a forfeiture to E. of the office of attorney and counselor, and the pardon does not reinstate him. In that view he stands very much as if he had held some office, as for instance that of county judge. His pardon would not have reinstated him in office."

In Matter of ___, an Attorney, 86 N.Y. 563, where the attorney disbarred had been tried and convicted of forgery the learned chief justice very ably discussed the question involved, and we quote from him at length as follows: "It is contended that the executive pardon of that offense has wholly blotted it out, and has given him new credit and capacity, and that in the eye of the law he is as innocent as if he had never committed the offense. Ex parte Garland, 4 Wall. (U. S.) 380, 18 L.Ed. 366; In re Deming, 10 Johns. (N. Y.) 232, 483. Doubtless the effect of the pardon is that, so far as the violation of the criminal law, the offense against the public, is concerned, he is to be looked upon as innocent thereof. The pardon does reach the offense for which he was convicted, and does blot it out, so that he may not now be looked upon as guilty of it. But it cannot wipe out the act that he did, which was adjudged an offense. It was done, and will remain a fact for all time. Notwithstanding the extensive language used in Ex parte Garland, supra, and in Re Deming, supra, and that which we have used, there are limits to the effect of such a pardon. 'The word "pardon" includes a remission of the offense, or of the penalties, forfeitures or sentences growing out of it.' Per Edmonds, J., People v. Potter, 1 Parker, Cr. R. (N. Y.) 51. The pardoned man is relieved from all the consequences which the law has annexed to the commission of the public...