People ex rel. Dunbar v. Fischer
| Decision Date | 18 July 1955 |
| Docket Number | No. 17484,17484 |
| Citation | 132 Colo. 131,287 P.2d 973 |
| Parties | The PEOPLE of the State of Colorado ex rel. Duke W. DUNBAR, as the Attorney General of the State of Colorado, Relator, v. George FISCHER, Respondent. |
| Court | Colorado Supreme Court |
Duke W. Dunbar, Atty. Gen., of the State of Colorado, Patricia H. Maloy, Asst. Atty. Gen., for relator.
Isaac Mellman & Gerald N. Mellman, Denver, for respondent.
The People of the State of Colorado upon the relation of Duke W. Dunbar, Attorney General, in seeking from our Court a writ to show cause why respondent should not have his license to practice law revoked, and have his name stricken from the roll of licensed attorneys, charge that respondent on June 29, 1953, was convicted in the United States District Court for the District of Colorado of the crime of wilfully defeating and evading income tax payments in violation of section 145(b), Title 26, United States Code, which is denominated a felony by said Act; that upon conviction respondent was sentenced to serve two years imprisonment upon count one of the indictment, and upon count two thereof he was placed upon probation for five years after the expiration of the term of imprisonment imposed on count one.
Petitioner further alleges that respondent appealed to the United States Court of Appeals, Tenth Circuit, 212 F.2d 441, on July 8, 1953, and on June 21, 1954, his conviction was upheld in all respects, whereupon our Court issued its order upon the respondent to show cause why he should not be prohibited from practicing law and disciplined as the Court shall determine.
In compliance with the order to show cause respondent alleged as follows:
1. Admits the conviction in the United States District Court for District of Colorado of a felony.
2. Denies that the offense involved moral turpitude or that his actions disclosed unscrupulous conduct or moral turpitude or intentional misconduct.
3. Alleges that respondent was entitled to his requested bill of particulars, and as a result of the denial of such request he had no way of contemplating certain evidence presented at the trial by the government in reference to his failure to report as income certain 'pay off' or 'protection' money, whereas the gist of the indictment was failure to report income received by him.
4. That in case of United States v. Mayberry, No. 13284, the trial of which occurred immediately thereafter, respondents and Mayberry's counsel had an opportunity to refuse this 'pay off' or 'protection' evidence and said Mayberry was acquitted; that the acquittal of Mayberry was submitted to the U. S. Court of Appeals as a specification of error in respondent's appeal.
Respondent alleges that the record disclosed he did not have a fair trial. Whereupon our Court appointed Fred Farrar, a distinguished member of the Colorado Bar, as Referee to hear the issues thus framed and make his report to our Court. The above proceedings, the issues presented, and attendant burden of proof are in harmony with our pronouncements in People ex rel. Colorado Bar Ass'n v. Burton, 39 Colo. 164, 88 P. 1063; People ex rel. Attorney General v. Laska, 101 Colo. 221, 72 P.2d 693; People ex rel. Attorney General v. Brayton, 100 Colo. 92, 65 P.2d 1438; People ex rel. Attorney General v. Edison, 100 Colo. 574, 69 P.2d 246; People ex rel. Attorney General v. Laska, 105 Colo. 426, 101 P.2d 33.
An extended hearing was held before the referee as evidenced by the voluminous record, a transcript of which was filed with his detailed and exhaustive findings, conclusions of law and recommendation of disbarment.
Summarized briefly the salient facts of the referee's findings, conclusions of law and recommendation, dated April 27, 1955, are as follows:
Respondent has been a licensed practicing attorney in this state for twenty years; is forty-five years old; married and has two children; he was district judge for a portion of the term in 1942-43; former Adams County Attorney and Assistant District Attorney of the First Judicial District; author of a pamphlet concerning income tax matters and proper methods of keeping books for income tax purposes; the joint income tax return of respondent and wife for 1949 reported an income of $6,315.64, whereas his actual income was $9,159.94; the 1950 joint income tax return reported $9,104.20, whereas the actual income was $21,203.75.
Respondent's counsel claim that in the trial in the Federal Court he was unfairly and prejudicially surprised by testimony as to income from 'pay off protection money' and urges that in a companion case, United States v. Mayberry, supra, tried immediately after this case, wherein similar testimony as to 'pay off protection money' was involved, defendant Mayberry was acquitted because counsel had time to obtain evidence to refute testimony in reference to this 'pay off protection money' income. The referee finds this contention of surprise inconsistent with the evidence because the evidence discloses that federal tax agents, investigating respondent's books long prior to the trial, asked him if he had received any money from this source. The validity of this finding by the referee is supported by the opinion in Rubenstein v. United States, 10 Cir., 214 F.2d 667, wherein, at page 669, is the following statement:
'The record shows that the appellant upon two different occasions voluntarily appeared before revenue agents and fully discussed his returns as to his own figures and...
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Humphreys, Matter of
...re Shorter, 570 A.2d 760 (D.C.1990) (disbarred); In re Gibbs, 256 Ind. 692, 271 N.E.2d 729 (1971) (disbarred); People ex rel. Dunbar v. Fischer, 132 Colo. 131, 287 P.2d 973 (1955) (disbarred); In re Hallinan, 43 Cal.2d 243, 272 P.2d 768 (1954), later proceeding, In re Hallinan, 48 Cal.2d 52......
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