State v. Riddle

• Citation: 213 Ala. 430,105 So. 259
• Decision Date: 25 June 1925
• Docket Number: 7 Div. 484
• Parties: STATE ex rel. SANFORD, Solicitor v. RIDDLE.
• Court: Supreme Court of Alabama

105 So. 259

213 Ala. 430

STATE ex rel. SANFORD, Solicitor v. RIDDLE.

7 Div. 484

Supreme Court of Alabama

June 25, 1925

Appeal from Circuit Court, Talladega County; A.P. Agee, Judge.

Petition by the State of Alabama, on the relation of J.B. Sanford Solicitor, against D. Henry Riddle. From a judgment for respondent, complainant appeals. Reversed and remanded.

Harwell G. Davis, Atty. Gen., J.B. Sanford, Sol., of Talladega, Alex Pitts, of Selma, and James J. Mayfield, of Montgomery, for the State.

L.H Ellis, of Columbina, for appellee.

SOMERVILLE J.

The judgment of conviction exhibited by the state against the respondent in this proceeding is not subject to collateral impeachment. The United States District Court had jurisdiction of the offense under section 215 of the United States Penal Code (U.S.Comp.St. § 10385), and the record shows that it had jurisdiction of the respondent [defendant there] by virtue of an indictment regularly found. The subsequent irregularities complained of, and sought to be shown by evidence dehors the record, would have been proper matters to be considered on appeal, if properly shown, but cannot avail on collateral attack.

Under section 6258, Code 1923 (section 2993, Code 1907), "the proceedings to remove or suspend an attorney, as provided for in the last two sections [sections 6256, 6257], may be taken by the court of its own motion, or upon the motion of any third party." This proceeding was therefore properly brought by the solicitor of the circuit, and his authority cannot be challenged. The state is proceeding under subdivision 1 of section 6256 of the Code, which provides:

"An attorney must be removed for the following causes by the circuit court: 1. Upon his being convicted of a felony other than manslaughter, or of a misdemeanor involving moral turpitude; in either of which cases the record of his conviction is conclusive evidence."

The policy of the statute is plain: When an attorney has been convicted of any criminal offense within the classes specified, the fact of conviction renders him an undesirable member of the legal profession, and, though he may in fact be innocent of the crime for which he has been convicted, the welfare of the profession, and the preservation of the public confidence in its honor and integrity, demand the removal of the convicted attorney from his position of trust and responsibility. There is no dispute in the evidence that was before the trial court

As we view the case, the issue depends upon two questions of law: (1) Does the disbarment provision contemplate a conviction in any court within the state, whether state or federal; or must it be construed as meaning a conviction in a state court only? (2) If it embraces federal court convictions, must the conviction be for an offense punishable eo nomine under the laws of the state? Or is the conviction within the contemplation of the statute if the offense though not punishable eo nomine under the laws of the state, nevertheless comprehends an offense involving moral turpitude under those laws?

1. In matter of Ebbs, 150 N.C. 44, 63 S.E. 190, 19 L.R.A. (N.S.) 892, 17 Ann.Cas. 592, it was held by a bare majority of the court that, under a statute substantially like ours, an attorney could not be disbarred "because he has been convicted in the courts of another state or of the United States." In that case the conviction was in a United States District Court in Louisiana, and hence the question here presented was not before the North Carolina court. The reasoning in that case is, however, not at all convincing, and it has never been followed by any other court, so far as we are advised. Though the record does not show the theory upon which the trial judge instructed the jury to find for the respondent, we infer from the arguments of counsel that he was influenced to that conclusion by the Ebbs Case, supra.

In support of that view counsel for respondent call attention to some supposedly supporting analogies: (1) That under statutes which disqualify witnesses on account of their conviction of perjury or other crimes, some courts have held that convictions in the courts of other states were not within the statutes (Com. v. Green, 17 Mass. 515; National Trust Co. v. Gleason, 77 N.Y. 400, 33 Am.Rep. 632; Sims v. Sims, 75 N.Y. 466); (2) that in declaring who are ineligible to public office in Alabama, the statute (section 2575, Code 1923) specifies those who have been convicted of certain crimes, "or any other crime punishable by imprisonment in the state or federal penitentiary," thus indicating the necessity of expressly including convictions in the federal courts; and (3) that one of the statutory grounds for divorce in Alabama (section 7407, Code 1923) is "imprisonment in the penitentiary of this or any other state, for two years," thus again indicating the necessity of specifying other jurisdictions, when they are to be included in the operation of the statute.

As to the first suggestion, the analogy fails because the principle invoked involves convictions in other states, and not in federal courts of the same state. It is to be noted, also, that the reason given for the rule is that the disqualification of a witness is in the nature of a penalty, and penalties of that sort can have no exterritorial operation. That reasoning is, we think, faulty, and loses sight of the main purpose of the disqualification, the protection of litigants or defendants against probably perjured testimony. Taylor v. State, 62 Ala. 164. Four courts seem to have held to the contrary. Chase v. Blodgett, 10 N.H. 24; State v. Foley, 15 Nev. 64, 37 Am.Rep. 458; State v. Candler, 10 N.C. 393; Day v. Lusk (Mo.Sup.) 219 S.W. 597. The question was mooted in one of our early cases, but its decision was expressly pretermitted. Campbell v. State, 23 Ala. 44, 73.

The second and third suggestions are, as arguments, not entirely without force in the ascertainment of the legislative intent in the framing of other statutes imposing penalties or disqualifications for conviction of crime. But this force is weakened, in view of the fact that section 364, Code 1923, provides for the disqualification of voters who are "convicted" of certain crimes; and section 365, following, incidentally recognizes, in declaring the effect of pardon by the governor, that section 364 included convictions in either the state or federal court, though it did not mention the latter.

In this connection it may be noted that the Kentucky court has held that a conviction of crime in a federal court will exclude the convicted person from holding office in that state the same as if convicted in a state court, under a constitutional provision visiting that result upon a "conviction," though it did not expressly mention federal courts. Cowan v. Prowse, 93 Ky. 156, 171, 19 S.W. 407. To the same effect see Jones v. Board of Registrars, 56 Miss. 766, 31 Am.Rep. 385. The case of Ex parte Quarrier, 2 W.Va. 569, did not involve the effect of a conviction in a federal court; it expressly appearing that the applicant for admission to the bar had not been convicted of treason, and had been granted complete amnesty by the federal government, and the case is not at all in point.

Turning, now, to the adjudications opposed to respondent's contention, we find that six state courts have specifically held, in proceedings for disbarment under statutes substantially like or identical with ours, that conviction of any of the designated crimes in a federal court is within the terms of the state disbarment statute: California.--In re O'Connell, 184 Cal. 584, 194 P. 1010 (conspiracy to violate the United States Espionage Act); In re Crane, 189 P. 1072 (using the United States mails to defraud); Barnes v. District Court of Appeals, 178 Cal. 500, 173 P. 1100 (mailing obscene and lascivious letter); In re Shepard, 35 Cal.App. 492, 170 P. 442 (conspiring to smuggle opium into United States).

Idaho.--In re Kerl, 32 Idaho, 737, 188 P. 40, 8 A.L.R. 1259 (disloyal acts while country at war); In re Hofstede, 31 Idaho, 448, 173 P. 1087 (obstructing registration for military service during war).

New York.--In re Hodgskin, 193 A.D. 217, 183 N.Y.S. 401 (conspiracy to commit felony under section 37 of United States Criminal Code); In re Lindheim, 195 A.D. 827, 187 N.Y.S. 211 (conspiracy to defraud United States); In re Roth, 210 A.D. 487, 206 N.Y.S. 232 (extortion--crime and conviction in California); In re Dubin, 211 A.D. 644, 208 N.Y.S. 125 (perjury in bankruptcy court).

Oregon.--Ex parte Biggs, 52 Or. 433, 97 P. 713 (limited to conviction of offense punishable under state laws); State ex rel. Grievance Committee Oregon Bar Ass'n v. Woerndle, 109 Or. 461, 209 P. 604, 220 P. 744 (perjured affidavit to secure passport to Germany).

South Dakota.--In re Kirby, 10 S.D. 322, 414, 73 N.W. 92, 907, 39 L.R.A. 856, 859 (conviction in United States District Court).

Washington.--In re Hopkins, 54 Wash. 569, 103 P. 805 (offense against pension laws of United States); In re Wells, 121 Wash. 68, 208 P. 25 (conspiracy to oppose operation of war measures); In re Comyns, 232 P. 269 (using United States mails to obtain property under false pretenses).

See, also, as in accord with the principle of the above cases: People v. Gilmore, 214 Ill. 569, 73 N.E. 737, 69 L.R.A. 701 (conviction in Missouri); In re Margolis, 269 Pa. 206, 112 A. 479, 12 A.L.R. 1186 (violation of United States Draft Act [U.S.Comp.St.1918, U.S.Comp.St.Ann.Supp.1919, §§ 2044a-2044k]).

In Barnes v. District Court of Appeals, supra, the Supreme Court of California said:

"The reasons which induced the Legislature to prescribe this as a ground for disbarment are as potent when applied to a conviction in a court of another state, or in a

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