State v. Kirby

CourtSupreme Court of South Dakota
Citation154 N.W. 284,36 S.D. 188
Docket Number3862
PartiesSTATE OF SOUTH DAKOTA Plaintiff, v. JOE KIRBY, Defendant. IN THE MATTER OF THE DISBARMENT OF JOE KIRBY.
Decision Date08 October 1915

Original proceedings

#3862--Defendant adjudged guilty of contempt

Disbarment proceedings dismissed

C. C. Caldwell, Attorney General

Attorney for the State.

Joe Kirby, in pro. per.

Opinion filed October 8, 1915

WHITING, J.

Based upon one alleged wrongful act, the two above-entitled matters were brought before this court; the one charging the defendant with being guilty of contempt of this court; the other charging him with dishonorable and unprofessional conduct as an attorney and counselor at law. Both proceedings were, by mutual consent, heard at one and the same time. The charges against the defendant and respondent (hereinafter known as defendant) were, in substance, that he had, during all the times mentioned, been and now was a regularly licensed and practicing attorney of this state. The Daily Capital Journal was a newspaper published in Pierre, S. D., having a general circulation in the vicinity of Pierre and throughout the state, and, at the times mentioned, one Kingsbury was the duly authorized and empowered reporter for said newspaper, authorized as such to collect and publish news. In the issue of said paper published on July 9, 1915, the said Kingsbury (being authorized so to do by defendant) caused to be printed, published, and circulated the following article:

"Joe Kirby Says Egan Will Stay.

"Joe Kirby, the Sioux Falls attorney, who recently presented to the Supreme Court of the state of South Dakota, the argument for State Auditor Handlin, in the case of Judge McCoy against the auditor in the matter of the payment of expense vouchers, was in Pierre for a few moments yesterday and in conversation with a reporter for the Capital Journal, Mr. Kirby became prophetic.

"'The Supreme Court of South Dakota will not disbar G. W. Egan of Sioux Falls, from the legal bar of the state of South Dakota, upon the complaints used by the Attorney General of the state in his recent charges against Egan,' said Kirby. 'Just paste this prediction in your hat and see whether or not it is correct.'

"Pressed for reasons for this positive statement Mr. Kirby said Egan proposes to use every argument within his command, in the coming campaign for the governorship, and that if pressed to it, he will bear down upon the fact that the Supreme Court of the state saw fit to decide against Mr. Handlin in that perquisites case and that the Supreme Court and the Governor of the state, consider the matter a closed incident, unless some candidate discusses it before the people.

"'Therefore, in order that Egan may not be impelled to say anything about it, the Supreme Court will not give serious consideration to the Attorney General's proposition to disbar Egan,' says Mr. Kirby."

On May 14, 1915, disbarment proceedings were commenced in this court against one George W. Egan. Said disbarment proceedings have at all times thereafter been pending before this court, as was, on July 8, 1915, well known to defendant. On July 8, 1915, at the said city of Pierre, defendant, well knowing that said Kingsbury was a reporter for said Daily Capital Journal, then and there gave and stated to said reporter the matters and things stated in the aforesaid published article, and authorized the said reporter to print and publish the same. Defendant, at the same time and place, made substantially the same statements to one Travis, another newspaper reporter, well knowing that said Travis was then and there a newspaper reporter. In the contempt proceedings it was also alleged that: Such article, so published as aforesaid, charges that this court will be influenced and governed by selfish and corrupt motives in the consideration of said disbarment proceedings against said Egan. The publication and circulation of such article, during the pendency of said proceedings against the said Egan and prior to the trial and decision thereof, have, from the nature thereof, a tendency to embarrass, impede, and interrupt the due administration of justice and the proceedings of the court in fairly and impartially trying the issues between the said Egan and his accusers.

Kingsbury testified in detail as to the conversation with defendant and to his taking notes of the same as the conversation progressed, and also swore that defendant authorized the publication of the interview. His testimony, in all respects, sustained the charges against defendant. His notes were received in evidence and were as follows:

"Joe Kirby home from visit to Black Hills. Supreme Court will not disbar Egan upon complaint based upon charges filed by Attorney General. Paste this in your hat. Because Egan in his campaign will use every argument to secure election and if driven to it will bear down on results in Handlin case. Therefore keep Egan from alluding to it court will not consider Atty. Gen'ls proposition."

The witness Travis testified that defendant stated to him in effect as follows:

"They certainly will go ahead and investigate, but it will be a whitewash; the court don't dare disbar Egan for if they do, he will take the stump in the next campaign on the $50 deal against the judges."

And he further testified that he did not recall anything further said in regard to that matter. He further testified, upon cross-examination, that if defendant used the pronoun "they" in place of the words "the court," it was after the question, "What had the court done in the Egan matter?" The interviews with the two reporters were at the same place and one immediately following the other. There was absolutely nothing elicited, either upon the direct or cross-examination of these two witnesses, from which it would appear that defendant had in mind any person, other than the members of this court, in speaking of what would happen in the Egan disbarment proceeding and of the reason for such happening.

Defendant, while admitting that he had conversations with said reporters at the time and place mentioned, swore that the conversations were not as alleged and as testified to by said reporters, and swore that when Kingsbury produced his notebook he specifically instructed him not to report such conversation, and that he made no notes. Defendant testified that he told Kingsbury:

"If George W. Egan was disbarred, then he would be absolutely foot-loose and he would use the decision in this salary deal, the Handlin case, and would use other matters in his possession that I believe he possesses, so that he could defeat any man affiliated with the party in power in the state of South Dakota, in his own district."

He then testified to statements he made to Kingsbury in regard to his views as to Egan's political aspirations; to how a certain reputed candidate for the office of Governor, aided by other members of a certain political party or organization, would, in order to further the political ambitions of such gubernatorial candidate and also placate Mr. Egan, assist Mr. Egan to gain the nomination for a certain office other than that of Governor, which other office defendant believed Mr. Egan desired to obtain; and as to how, in order that Mr. Egan's candidacy might not be injured by a judgment of disbarment against him, such gubernatorial candidate, aided by his coworkers, would see to it that, "when the Attorney General and prosecution want evidence, they would find that the evidence had evaporated, in other words, had disappeared," and that Mr. Egan would have "a clean bill of health or whitewash when they got through with it." Defendant testified that he did not consider this court "a part of that political party or organization that would do this whitewashing." He testified that, in the conversation with the reporters, he said nothing "at any time that reflected on the court" that what he stated was "that the court wouldn't disbar him ... for lack of evidence." Defendant, summarizing what he claimed to have told the reporters to be reasons why Egan would not be disbarred, stated that it was:

"That Egan could duck that (the McCoy v. Handlin case, 35 S.D. 487, 153 N.W. 361) and other things and he would be let, would have to be let, in out of the cold; ... that they (the political organization) wouldn't dare have a disbarred man on the ticket or the ... would elect a man against him, ... and when ... spoke, the fellows down the line would have to fall in line, ... and where is your court, without evidence."

Defendant testified that he thought then and now that the court would decide the Egan case according to the law and the evidence; that he said nothing to Kingsbury that could be construed as stating that this court would not dare disbar Egan. But defendant admitted, upon cross-examination, that, before he had seen a copy of the publication complained of, he asked the Attorney General what the article was, and the Attorney General stated to him the substance thereof, except that, instead of stating that the article said, "The court wouldn't disbar Egan," he said it stated, "Egan wouldn't be disbarred"; and he further admits that he told the Attorney General that, "Yes, I guess that's about right, except I told him not to publish it." Defendant testified that he thought the Attorney General said that the article stated, "Mr. Egan wouldn't be disbarred because he would use the Handlin case in his campaign for Governor." The Attorney General testified that he advised defendant that, "In that article, you are quoted as saying that the court wouldn't date to disbar Egan because of the decision of the court in the so-called perquisites case," and further advised him that Kingsbury had stated in an affidavit that he (defendant) stated, "You can print that too;" and that then defendant said, "I guess that's about right, except that I told Kingsbury not to publish it." The Attorney General also testified that he then told defend...

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