People ex rel. Black v. Smith

• Decision Date: 05 December 1919
• Docket Number: No. 11131.,11131.
• Parties: PEOPLE ex rel. BLACK et al. v. SMITH.
• Court: Illinois Supreme Court

290 Ill. 241

124 N.E. 807

PEOPLE ex rel. BLACK et al.

v.SMITH.

No. 11131.

Supreme Court of Illinois.

Oct. 27, 1919.

Rehearing Denied Dec. 5, 1919.

Information by the People, on the relation E. E. Black and others, for the disbarment of Orville A. Smith. Rule made absolute, and respondent's name stricken from the roll of attorneys.

E. E. Black, State's Atty., of Pekin (Franklin L. Velde and Ralph Dempsey, both of Pekin, of counsel), for relators.

George B. Sucker, of Peoria, and O. A. Smith, of Pekin, for respondent.

THOMPSON, J.

An information on the relation of the state's attorney of Tazewell county and certain members of the bar of that county was filed in this court at the October, 1916, term, for the disbarment of Orville A. Smith, respondent, as a practicing attorney, and to strike his name from the roll of attorneys. The information consisted of 20 counts, but counts 1, 2, and 3 were stricken, and counts 9 and 10 have been abandoned by relators. Respondent answered the information, denying in general all the allegations. The matter was referred to a commissioner to take and report the proofs, together with his conclusions and recommendations. The commissioner found respondent guilty of the charges set forth in counts 4 to 6, inclusive, and 11 to 18, inclusive, but that counts 7, 8, and 20 were not sustained by the evidence and that as to count 19 the evidence did not correspond fully to the charge. Respondent filed exceptions to the report of the commissioner as to all his findings, except as to counts 7, 8, and 19, and relators filed exceptions to the commissioner's finding as to count 19, and also as to his ruling denying to relators the right to amend that count to make it correspond to the evidence.

The fourth count charges that November 11, 1909, respondent was fined for carrying concealed weapons and for creating a disturbance in a disorderly house in the city of Pekin, and that respondent for a year prior to that date had frequented disorderly houses in that city, and on such occasions carried and displayed a revolver and created disturbances. The evidence as to this charge shows that respondent did frequent such disorderly houses as often as three times a week, and that he remained in such houses as late as 3 o'clock in the morning. On behalf of the relators, evidence was adduced to the effect that respondent visited these houses as a patron, while he insisted that some of his visits were pursuant to a commission by the mayor of Pekin as a secret service agent, to check up certain police officers, in order to ascertain what their habits were with reference to visiting such houses, and some of his visits were professional calls, pursuant to employment as an attorney by the keepers. We think the evidence shows that, irrespective of whether respondent was, in fact, an officer under appointment by the mayor, as testified to by him, and irrespective of his employment as an attorney by the keepers, he did visit such houses as a patron. We do not feel that the fact of a fine having been assessed against respondent, or the evidence of his having visited disorderly houses in Pekin, as disclosed by the record, in and of itself would warrant us in disbarring him; but such evidence may be considered, in connection with the other evidence in the case, in determining whether respondent is a fit and proper person to hold a license to practice law in this state.

The fifth count charges that respondent committed perjury in an affidavit filed by him November 21, 1911, with the clerk of the Appellate Court for the Third District; that said affidavit was attached to a motion to reinstate in said court the case of Jibben v. National Cash Register Company; that the case was originally tried in the circuit court of Tazewell county, and judgment entered against Jibben, who was a constable; that respondent, as attorney for Jibben, prayed for and was allowed an appeal to the Appellate Court; that an appeal bond was filed, but no transcript; that at the May term, 1911, of said Appellate Court the attorney for the company filed a certificate in accordance with the statute, and the court affirmed the judgment. The affidavit stated that shortly after the trial was concluded in the circuit court respondent requested the clerk of that court to prepare a complete transcript of the record, and that the clerk advised him that the record had not then been written up, and that it would require considerable time for him to write up the record and prepare the transcript; that later, on May 20, 1911, respondent again went to the office of the circuit clerk for the purpose of securing the transcript, and that, relying on the conversation had with the clerk, he believed the transcript would be ready at that time. The count further charges that respondent did not request the circuit clerk to prepare a transcript, but, on the contrary, notified the clerk that he (respondent) would prepare the transcript and present the same to the clerk for comparison and signature. The affidavit further stated that respondent was not aware that a certificate had been issued until July, 1911, about the time the clerk of the circuit court had written respondent that the company had asked for a procedendo, and that the respondent had no knowledge relative to the existence of such certificate until a considerable space of time after the Appellate Court had adjourned. The count further charges that respondent had personal knowledge of the affirmance of such judgment by the Appellate Court about the 20th of June, 1911. The evidence clearly sustains this count. The only conclusion to be drawn from this evidence is that respondent made the affidavit in question willfully and corruptly, with the intention of wrongfully inducing the Appellate Court to reinstate the case.

The sixth count charges that the respondent committed perjury about March 9, 1914, in the case of Lucas v. C. O. Smith, in the circuit court of Tazewell county; that one of the issues involved in that case was whether the name ‘C. O. Smith,’ appearing in the entry book of the recorder of that county, was the genuine signature of said C. O. Smith; that respondent testified falsely before the master in chancery to the effect that said signature was the genuine signature of C. O. Smith, whereas, in fact, the signature was in the handwriting of respondent. C. O. Smith is a brother of respondent, but was not called as a witness. The testimony of respondent before the master was produced,wherein he testified that the signature on the entry book was that of C. O. Smith. Various notes and checks, showing the genuine signature of C. O. Smith, were produced, and witnesses with a knowledge of handwriting testified, after an examination of such purported signature in the entry book and the genuine signatures of C. O. Smith on the checks and notes, that in their opinion the signature in the entry book was not the genuine signature of C. O. Smith. The commissioner was justified in finding that the evidence supported this count.

[2] Counts 11 to 14, inclusive, relate to respondent's dealings with the American General Agency Company and the Pioneer Life Insurance Company. These counts charge that respondent, together with Milton W. Sutton and George L. Colburn, under cover of their connections with these two companies, obtained $4,317.49 from said companies by the confidence game; that they were indicted by the grand jury of Tazewell county, Ill., but because the record did not show that the indictment was returned into open court the case was dismissed; and that the statute of limitations had then run. The evidence shows that respondent was general counsel for the two companies in May, 1911; that he was also director of the agency company and trustee of the insurance company; that at the time he became connected with these two companies they were both insolvent; that the insurance company was in disfavor with the insurance department of the state; that these parties caused the entire assets of the insurance company to be turned over to the agency company while the two companies were insolvent; that after such transfer all the assets so turned over were used by said parties in liquidating certain prior advances which they claimed they had made and in paying large fees to themselves. Respondent was the moving spirit in these transactions and acted as general counsel for the two...