State v. Burr

• Decision Date: 26 May 1886
• Citation: State v. Burr, 19 Neb. 593, 28 N. W. 261 (Neb. 1886)
• Parties: THE STATE OF NEBRASKA, EX REL. THE ATTORNEY GENERAL, v. L. C. BURR, AN ATTORNEY AT LAW
• Court: Nebraska Supreme Court

28 N.W. 261

19 Neb. 593

THE STATE OF NEBRASKA, EX REL. THE ATTORNEY GENERAL, v. L. C. BURR, AN ATTORNEY AT LAW

Supreme Court of Nebraska

May 26, 1886

ORIGINAL information by the attorney general, alleging unofficial conduct of respondent as an attorney at law.

William Leese, Attorney General, for the information.

J. M Woolworth, for respondent, cited: Ex parte Burr, 9 Wheaton 530. Ex parte Garland, 4 Wall. 378. Ex parte Robinson, 19 Wall. 512. Dickinson v. Dustin, 21 Mich. 561. People v. Harvey, 41 Ill. 277. Ex parte Tillinghast 4 Peters, 108.

REESE, J. MAXWELL, CH. J., concurred. COBB, J., dissented.

OPINION

REESE, J.

On the 30th day of September, 1885, the attorney general, acting in the line of his duty, presented an information to this court alleging, among other things, that on the 26th day of October, 1883, one Matthias Simmerman was convicted of murder in the first degree by the district court of Kearney county and sentence of death was pronounced against him; that afterwards such proceedings were had as brought the cause into the supreme court for review upon error, where the judgment and sentence of the district court were affirmed, and the 17th day of April, 1885, was fixed upon as the time for the execution of the sentence; that on the third day of March, 1885, a writ of error was allowed by one of the associate justices of the supreme court of the United States, which writ was issued out of said court, commanding this court to stay proceedings until the cause could be heard and decided by that court, and that said cause was still pending therein. That said Simmerman was, by order of the court, removed to the county jail of Buffalo county for safe keeping; that respondent is now and for some time last past has been a practicing attorney of this court, and as such attorney has had sole control of said cause on behalf of said Simmerman, and while said cause was still pending in the supreme court of the United States the said respondent, on the 25th day of September, 1885, in the county of Buffalo, in this state, did falsely, willfully, and knowingly represent to one Marsh Saville, a United States commissioner at Kearney, in said county, that, as such commissioner, the said Saville had jurisdiction to release said Simmerman on bail, and for that purpose had power and authority to issue a writ of habeas corpus to the sheriff in whose custody said Simmerman was detained, and cause said Simmerman to be brought before him for said purpose of admitting him to bail; that said Saville, as such commissioner, acting on the false advice of respondent as such attorney at law, on said day issued a writ of habeas corpus in favor of said Simmerman to the sheriff of Buffalo county, commanding him to produce the body of said Simmerman forthwith before the said Saville, which said writ was served by a deputy marshal of the United States, and on the same day, in obedience to said writ, the said sheriff delivered said Simmerman before said commissioner, who, acting under the sole advice and counsel of respondent, discharged said Simmerman from the custody of the sheriff and from the authorities of the state; that no notice of any kind of said proceeding was served upon the attorney general, nor any other person, to appear in behalf of the state, but that the whole proceeding was clandestine and executed in secrecy by respondent, and was a trick and device contrived by respondent as such attorney at law, and with intent to deceive and to obstruct the due course of justice and of the legitimate authority of the state; that at the time respondent so procured said writ to issue and said Simmerman to be discharged from custody, he well knew the same to be contrary to law and the advice to be false. The prayer of the information was that the matter be referred to a committee of the bar for investigation, and in order that such steps might be taken as should be deemed necessary, etc. But the court was of the opinion that sufficient was contained in the information filed by the attorney general, and that it was his official duty to conduct the examination, in order that the inquiry might be thoroughly and properly made.

By the direction and order of the court notice was served upon respondent, and he appeared and filed an answer to the charges, admitting the proceedings before the United States commissioner as alleged in the information, but denying all allegations touching bad faith or false advice on his part, and alleging that all steps taken by him in the matter of the release of Simmerman were taken in good faith, without collusion, fraud, deceit, evil design, or secrecy, and with no impure or dishonest motives on his part.

The matter was referred to a committee of attorneys of the court, consisting of John C. Cowen, of Douglas county, chairman; M. L. Hayward, of Otoe county; John M. Ragan, of Adams county; A. Ewing, of Merrick county; and N. S. Harwood, of Lancaster county; with directions to hear the testimony and to find and report their conclusions of fact and of law.

In obedience to this order the committee met, and were about to proceed to the taking of the testimony, when an objection to the taking of testimony was made, upon the ground that the court had no jurisdiction to make the inquiry, which objection was preserved by the record, and the testimony of Saville taken, when it was stipulated that the case should be submitted upon this testimony, the pleadings in the case, and the copy of the writ of habeas corpus.

The finding of the committee was as follows:

* * "The committee find that it is admitted by the pleadings that on the 26th day of October, 1883, said Mathias Simmerman was convicted in the district court of Kearney county, Nebraska, for the crime of murder in the first degree, and sentenced to be hanged; that the case was brought into this court, and all the proceedings confirmed, on the 18th of November, 1884, and said Simmerman was on said date, by the court, sentenced to be hanged on the 17th day of April, 1885; that on March 3d, 1885, a writ of error was issued out of the supreme court of the United States, staying all the proceedings in said case; that on the 25th day of September, 1885, such case was pending in the supreme court of the United States; that at that time said Simmerman was and for some time before had been confined in the county jail of Buffalo county, Nebraska, by order of this court, under sentence of death; that at said time, and for many years before, the said respondent L. C. Burr was an attorney of this court, and the attorney for said Simmerman in all said proceedings.

"It is also admitted by respondent's answer that on the 25th day of September, 1885, the respondent L. C. Burr appeared as attorney for the said Matt. Simmerman before one Marsh Saville, then acting as United States commissioner of the district court of the United States for the state of Nebraska, and then and there, as such attorney, filed with said Saville the petition of said Matt. Simmerman for a writ of habeas corpus, with a view of having said Simmerman brought from said jail before said Saville, and by him admitted to bail; that thereupon said Saville issued said writ, directed to the sheriff of Buffalo county, commanding him to bring the body of said Simmerman before said Saville, which writ was served by A. G. Hastings, a deputy United States marshal for the district of Nebraska; that said marshal and said sheriff produced said Simmerman before said Saville, in obedience to said writ, and the said sheriff thereupon made return of the cause of the capture and retention of said Matt. Simmerman, and that said Saville then and there released said Simmerman upon bail.

"We further find from the testimony that such proceedings did not take place at the office of said Saville, but at a hotel in Kearney. The writ was issued about six o'clock, served about eight o'clock, and Simmerman released about nine o'clock of the evening of the 25th of September, 1885; that said L. C. Burr persuaded said Saville into the belief that, as such commissioner, he had jurisdiction and authority to release said Simmerman on bail, and that it was his duty to do so, and induced said Saville to issue said writ of habeas corpus and release the said prisoner Simmerman, on a bail bond of $ 10,000, signed by a citizen of Wyoming territory, but whose name is not given in the testimony.

"No notice of any kind of the foregoing proceedings was given to the state authorities.

"The committee further reports as its conclusions of law, that said Simmerman was legally confined in the jail of Buffalo county in the custody of the sheriff of that county; that he was not entitled to bail; that said Saville had no authority to issue said writ and release the prisoner, and had no jurisdiction to take any action whatever in the premises; that the whole of the proceedings to secure the release of the prisoner Simmerman at Kearney were without any authority or precedent whatever, and were in flagrant violation of law and the judgment of this court in the case.

"It is also our conclusion of law that the professional or other conduct and acts of an attorney at law--an officer of this court, admitted to practice under its rules--as affecting the trust and confidence reposed in him as such attorney, and his relations to the court by virtue of his license, are within the jurisdiction of this court to take such action with respect thereto as the facts may warrant."

This report is signed by all the members of the committee.

Upon the filing of the report, respondent filed certain exceptions thereto, as follows:

"This defendant excepts to the finding in said report 'that at that time (that is to say, on the 25th of September, 1885) said...