State v. Swan
| Decision Date | 08 April 1899 |
| Docket Number | 11333 |
| Parties | THE STATE OF KANSAS v. HENRY SWAN |
| Court | Kansas Supreme Court |
Decided January, 1899.
Appeal from Saline district court; R. F. THOMPSON, judge.
Judgment reversed.
A. A Godard, attorney-general, and W. A. Norris, county attorney for The State.
Burch & Burch, for the appellant.
SMITH J. DOSTER C. J., concurring. JOHNSTON, J. dissenting.
The appellant, Henry Swan, was convicted of forgery in the second degree. His motion to quash the information was overruled, and a demurrer sustained to his plea in abatement of the action. A verdict of guilty was returned as to each of the two counts of the information. The court below granted a new trial on the first count, and sentenced the defendant under the second. The conviction was had under paragraph 2257 of the General Statutes of 1889 (Gen. Stat. 1897, ch. 100, § 143). The second count charges:
The information sufficiently shows that the defendant had the false check in his possession. It alleges a delivery of the same by him to William Hogben, the person defrauded. The statute requires that the instrument "be passed, uttered, sold, or exchanged, with intent to defraud." This charge was made with sufficient certainty.
This information was filed on November 22, 1898, duly verified by W. A. Norris, the county attorney of Saline county. Before this, on September 16, 1898, Norris had, by the judgment of the district court been disbarred from practicing and his license as an attorney at law revoked. The competency of the county attorney to file the information was challenged in the court below. It is urged by the appellant that the disbarment of Norris disqualified him from practicing in the district court as the representative of the state, and that the power given by statute to the district court to revoke or suspend the license of an attorney or counselor at law to practice therein, and its exercise by that tribunal, deprived him of authority to file a pleading in a criminal case, such as an information. The statute does not require that a person be admitted to the bar or have a license to practice before he is eligible to the office of county attorney. (The State v. Smith, 50 Kan. 69, 31 P. 784.) In case of a vacancy in the office, the judge of the district court is authorized to appoint a county attorney, but is not restricted in his selection to an attorney at law. The learned counsel for the appellant contends (and in this he is fortified with much authority) that the right to a license to practice law in the courts is conferred by judicial and not by legislative authority. No denial of this doctrine is necessary to a decision of this case. The legislature has power to prescribe the qualifications requisite to admission to the bar, but it has no power to provide that persons possessing them must be admitted to practice. Whether the prescribed qualifications exist or not is a judicial question. (1 A. & E. Encycl. of L. 944.)
The revocation of the license of Norris and his disbarment place him in the same status as if he had never at any time been admitted to practice. The cause of his disbarment is not a material consideration. After it he was no longer an officer of the court, but he was still an officer of the county. It cannot be held that he ceased to be county attorney. A different question would be presented if the statute required that the county attorney be an attorney at law. In that case his right to exercise official duties would by law depend upon his continued relation to the court as one of its officers.
The statute provides that the office of county attorney, as well as any other county office, shall become vacant on the happening of either of the following events: (1) Death of the incumbent; (2) his resignation; (3) his removal; (4) ceasing to be an inhabitant of the county from which he was elected or appointed; (5) his conviction of an infamous crime or any offense involving a violation of his official oath; (6) his refusal or neglect to take his oath of office or renew his official bond, or to deposit such oath and bond within the time prescribed by law; (7) the decision of a competent tribunal declaring void his election or appointment. (Gen. Stat. 1897, ch. 27, § 166; Gen. Stat. 1889, P 1884.) An attorney at law may be suspended from practice and his license revoked for the following causes: (1) When he has been convicted of a felony or of a misdemeanor involving moral turpitude, in either of which cases the record of conviction is sufficient evidence; (2) when he is guilty of a wilful disobedience or violation of the order of the court, requiring him to do or forbear an act connected with or in the course of his profession; (3) neglecting or refusing on demand to pay over money in his hands due or belonging to a client; (4) destroying, secreting, fraudulently withdrawing, mutilating or altering any paper or record belonging to the files or records in any action or proceeding; (5) the wilful violation of any of the duties of an attorney or counselor. (Gen. Stat. 1897, ch. 90, § 13; Gen. Stat. 1889, P 398.) Again: "An attorney or counselor who is guilty of deceit or collusion, or consents thereto, with intent to deceive a court or judge, or party to an action or proceeding, or brings suit or commences proceedings without authority therefor,...
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People v. Jackson
...attorney or an assistant district attorney need not be a licensed counsellor at law, then the conviction must be upheld (State v. Swan, 60 Kan. 461, 56 P. 750). Neither the New York State Constitution (art. XIII, § 13) nor any statute (County Law §§ 700, 926, 927, 930) requires that a prose......
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State ex rel. Summerfield v. Maxwell
...came to contrary conclusions in the cases of People ex rel. Galvin v. Dorsey, 32 Cal. 296, decided in 1867, and State v. Swann, 60 Kan. 461, 56 P. 750 (1899). However, perhaps it should be observed that shortly after the rendering of those decisions, the respective legislatures enacted stat......
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People v. Munson
...in order to render one eligible to the office of state's attorney or district attorney. People v. Dorsey, 32 Cal. 296;State v. Swan, 60 Kan. 461, 56 P. 750. It has, however, been held in other jurisdictions that in order to be eligible to fill the office of state's attorney it is necessary ......
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State v. White, 46200
...in this case was to prove that the signature of the purported drawer, Frederick L. Wagoner, was false or unauthorized. (State v. Swan, 60 Kan. 461, 56 P. 750.) There was no evidence presented by the state with respect to the existence of a Frederick L. Wagoner, or whether a person by that n......