State v. Mason

• Decision Date: 03 February 1896
• Citation: 29 Or. 18,43 P. 651
• Parties: STATE ex rel. MAYS et al. v. MASON.
• Court: Oregon Supreme Court

43 P. 651

29 Or. 18

STATE ex rel. MAYS et al. v. MASON.

Supreme Court of Oregon

February 3, 1896

Proceedings by the state, on relation of F.P. Mays and others, against O.P. Mason, for his disbarment, on the ground of his having been convicted of libel. Judgment of suspension entered.

PER CURIAM.

This is a proceeding to disbar an attorney, instituted by the state upon the relation of the members of the grievance committee of the Oregon State Bar Association. The facts are that O.P. Mason, a licensed attorney, was indicted, tried and convicted of the crime of libel, upon proof of the publication of defamatory matter in a newspaper published at Portland, Or., known as the Sunday Mercury, while he was its editor. Whereupon the relators filed an information against him in this court, alleging such conviction, and that the offense of which he was so convicted is a "misdemeanor involving moral turpitude," and prayed a judgment of removal against the accused. The defendant, upon being cited to appear, filed his answer to the information, in which he denies that the misdemeanor of which he was convicted involved moral turpitude, and alleges that he was found guilty thereof by construction of law only, which renders the manager, editor, or owner of a newspaper criminally liable for the publication of a libel, whether he wrote the article or not, or had any knowledge of its publication; that he did not write the alleged libelous article, nor see it or know of its publication until after the newspaper was in circulation. The reply having put in issue the allegations of new matter contained in the answer, the cause was referred to C.H. Sholes, who took and reported the evidence to this court, from which it appears that Mason, upon the argument of a demurrer to said indictment, stated to the court that he had seen the article before it was published, but did not consider it libelous, nor did he at that time so regard it that at the trial of said criminal action, as a witness in his own behalf, he testified that the statement so made by him to the court was erroneous; that at the time he argued the demurrer he thought he had seen and corrected the proof of the article, but, upon examining the original manuscript he found he had never seen it, nor did he know of its publication until after the newspaper was in circulation. The foreman of the Sunday Mercury testified that he was acquainted with and knew Mason's handwriting, that he set the type for a part of the article complained of, and that the defendant neither wrote it, nor corrected the proof thereof. No evidence was introduced to contradict Mason's testimony, and hence we must conclude that it is true, and also that he was convicted by reason of his carelessness, as editor, in suffering a libelous article to be published in a newspaper of which he was editor. State v. Mason, 26 Or. 273, 38 P. 130. The statute provides that an attorney may be removed or suspended upon his being convicted of a misdemeanor involving moral turpitude, in which case the record of his conviction is conclusive evidence. 1 Hill's Ann.Laws Or. § 1047.

The answer impliedly admits the conviction, the record of which is made a part of the evidence submitted; and this being conclusive thereof, necessitates an interpretation of the term "moral turpitude." Mr. Newell, in his work on Defamation, Slander and Libel (section 12), in speaking of the term, says: " 'Moral turpitude' may therefore be defined as an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." In actions of libel and slander, moral turpitude has been held to have been involved by imputing to another the commission of the following crimes: Abortion. Filber v. Dautermann, 26 Wis. 518; Bissell v. Cornell, 24 Wend. 354; Widrig v. Oyer, 13 Johns. 124 Adultery. Ranger v. Goodrich, 17 Wis. 80 Bribery. Hoag v. Hatch, 23 Conn. 585. Burglary. Alfele v. Wright, 17 Ohio St. 238. Forgery. Alexander v. Alexander, 9 Wend. 140. Fornication. Pollard v. Lyon, 91 U.S. 225. Keeping a bawdyhouse. Martin v. Stillwell, 13 Johns. 275. Larceny. Redway v. Gray, 31 Vt. 292; Perdue v. Burnett, Minor (Ala.) 138. Libel. Andres v. Koppenheafer, 3 Serg. & R. 254. Removing boundary marks. Young v. Miller, 3 Hill, 21; Dial v. Holter, 6 Ohio St. 228. It has been assumed, also, by way of argument, that moral turpitude is not involved in the commission of the following misdemeanors: Assault and battery, breaches of the peace, forcible entry and detainer, trespass, and sales of intoxicating liquor without a license. Redway v. Gray, supra; Smith v. Smith, 2 Sneed, 473; Andres v. Koppenheafer, supra. No unintentional wrong or improper act, innocent in purpose, can involve moral turpitude. Pullman Palace-Car Co. v. Central Transp. Co., 65 F. 158. The term lacks precision, and necessitates the examination of the works of moral and ethical authors, rather than the textbooks of legal writers, to ascertain whether a given case falls within or without the rule. Skinner v. White, 1 Dev. & B. 471; Birch v. Benton, 26 Mo. 153. In Parkersburg v. Brown, 106 U.S. 487, 1 Sup.Ct. 442, Mr. Justice Blatchford, commenting upon an ultra vires contract, says: "The illegality of that contract does not arise from any moral turpitude. The property was transferred under a contract which was merely malum prohibitum, and where the city was the principal offender. In such a case the party receiving may be made to refund, to the person from whom it has received property for the unauthorized purpose, the value of that which it has actually received." So, too, in Spring Co. v. Knowlton, 103 U.S. 49, Mr. Justice Woods, commenting upon a similar contract, says: "It is to be observed that the making of the illegal contract was malum prohibitum, and not malum in se. There is no moral turpitude in such a contract, nor is it of itself fraudulent, however much it may afford facilities for fraud." "This element of moral turpitude," says Lowrie, J., in Beck v. Stitzel, 21 Pa.St. 522, "is necessarily adaptive; for it is itself defined by the state of public morals, and thus far fits the action to be at all times accommodated to the common sense of the community." An assault and battery is a crime malum in se, the commission of which rarely involves moral turpitude. McCuen v. Ludlum, 17 N.J.Law, 12. It is apparent from the foregoing authorities that the term is vague, and that moral turpitude is involved only when so considered by the state of the public morals, and hence it might be applied in some sections, and denied in others; thus rendering a satisfactory definition of the term difficult, if not impossible. But inability to properly...