State v. Young

• Decision Date: 15 August 1892
• Citation: 11 So. 514,30 Fla. 85
• Parties: STATE ex rel. RUDE v. YOUNG, Circuit Judge.
• Court: Florida Supreme Court

11 So. 514

30 Fla. 85

STATE ex rel. RUDE v. YOUNG, Circuit Judge.

Florida Supreme Court

August 15, 1892

Original proceedings in mandamus by the state of Florida, on relation of Benton C. Rude, to compel William B. Young, as judge of the fourth judicial circuit, to restore relator's name to the roll of attorneys, from which it had been stricken by an order or disbarment. Peremptory writ awarded.

Syllabus by the Court

SYLLABUS

1. To authorize the disbarment of an attorney upon a charge of unlawfully and corruptly aiding, assisting, and counseling a justice of the peace to dismiss a prosecution pending before such justice against a third person for breaking and entering a dwelling house in the daytime with intent to commit a felony, the proof must be clear both as to the act charged against the attorney and his corrupt motive. Where there is conflict of testimony, there must be a clear preponderance against him.

2. Where an appellate court is reviewing the proceedings of an inferior court disbarring an attorney, it should not interfere with the conclusions of the latter court upon the evidence, unless it is clear that the latter court, viewing its action in the light of the rule which requires clear proof of the act and of the bad motive of the attorney, has decided erroneously, and there is a plain case of wrong and injustice to the attorney.

3. The testimony in this cast held insufficient to sustain a conclusion that the motive of the relator was corrupt; and relator restored to the bar.

COUNSEL

Randall & Foster, for plaintiff.

OPINION

The other facts fully appear in the following statement by RANEY C.J.:

The relator, having been disbarred by an order made by the respondent sitting in the circuit court for St. Johns county, seeks, through this proceeding, a writ of mandamus to have his name restored to the roll of attorneys.

The alternative writ purports to give the proceedings and testimony, and so does the return. The relator has demurred to the return, and the cause comes on to be heard on these pleadings.

According to the alternative writ, the grand jury had presented an indictment at the fall term, 1891, of the stated circuit court on the 5th day of November, charging in substance, that Charles B. Bucknor, on the 12th day of October, 1891, he being then county judge of that county, and by virtue thereof exercising the power of a committing magistrate, did, upon an affidavit received and filed by him and made by one Mary Murray, charging one General Washington with a felony, viz., breaking and entering her dwelling house with intent to commit a felony, issue his warrant; and that by virtue of said warrant, the said Washington was arrested and brought before the said county judge, and he, the said Bucknor, as such county judge, and under color of his office, did unlawfully and corruptly compound said felony, and did then and there corruptly receive money consideration, and corruptly refuse to send the papers filed and issued in such prosecution to the proper and legal custody, and did corruptly discharge Washington from the custody of the law; and that Benton C. Rude, an attorney and counselor at law, was present, and corruptly advising, aiding, assisting, and abetting the said Charles B. Bucknor, as said county judge, the said crime to do and commit, contrary to the form of the statute.

This indictment, according to the statement of the alternative writ, was quashed, and the inference to be drawn from such writ is that it was upon such quashing that the proceedings resulting in the dismissal of the relator were instituted; but we infer from the return that the indictment, upon the quashing of which such proceedings were commenced, was one presented November 6, 1891, and setting up the issue of a warrant on October 12th of the same year, by the county judge, upon an affidavit made by Mary Murray, charging Washington with feloniously breaking and entering, in the daytime, the dwelling house of said Mary, with intent to commit a felony; such indictment charging also the arrest of Washington on such warrant, and bringing him before such county judge to be dealt with according to law; and that such county judge, on the 19th day of October, by color of his office, did unlawfully and corruptly dismiss the prosecution, and discharge Washington from the custody of the law; and further charging that Rude, on the day last named, was corrupty present, and did then and there unlawfully and corruptly aid, assist, and counsel the said Bucknor the said crime to do and commit, contrary to the statute.

Upon the quashing of this indictment, it seems that the judge ordered the relator to show cause why he should not be dismissed from the bar for the acts charged in the indictment; or, as the charge is stated in the order of dismissal, for that he 'did corruptly and unlawfully aid, assist, and counsel C. B. Bucknor, county judge, to discharge a prisoner then before him on a charge of felony.' Rude announcing that he was ready to proceed in the matter, the court proceeded to hear the evidence. No order to show cause appears in the record before us; all we know of it is gathered from the disbarring order of November 11, 1891, and the order of December 21st of the same year, refusing a rehearing.

The testimony adduced on the hearing, stating it as it is given by the judge in his return, is as follows:

Mary Murray testified: 'I went to Judge Bucknor's office on a case against Washington. Judge Bucknor told me I had better go and talk with Mr. Rude about the case. I went to Rude's office, and he tried to get me to drop the case; told me I would not make anything if I went on with the case. I would not agree to this, and went back to the county judge's office. After a while the deputy sheriff brought Washington in, and then Rude came in and called me out in the hall, and told me that Washington would give me six dollars to compromise the case, and that I had better take it; that I would not get anything if I did not. I agreed to take it; and he handed me six dollars, and told me to take it and go along home. I took the money and went.'

Emma Hearn testified that she went to the office of the county judge with Mary Murray on October 19, 1891. He told Mary she had better go to Rude's office and talk with him about the case,--that Rude wanted to see her; that Mary went to Rude's office. After she came back Rude called her out into the hall, and she went, and did not come back.

Turner testified: 'I am deputy sheriff of St. Johns county. I arrested Washington on a warrant issued by Judge Bucknor. As I was taking him from the jail to Bucknor's office, he said he wanted to go to Rude's office; that his brother-in-law had employed Mr. Rude to defend him. I took him to Rude's office, and he had some conversation with Rude, and Rude asked him to let him see the warrant, and I showed it to him. There were several persons in Rude's office at that time. The prisoner was handcuffed. I then took the prisoner to the office of the county judge. When I got there Judge Bucknor said, 'Where is Rude?' and got up and went in the direction of Rude's office. In a short time he and Rude came back together. Rude then called Mary Murray back into the hall, and had some conversation with her. He came back into the county judge's office, and got some money from Washington, and went out into the hall again. In a short time he came back alone, and asked me how much the sheriff's costs were, and I told him. He then asked Judge Bucknor how much his costs were, and Buckner told him. He then paid the costs to Bucknor, and said, 'As nobody appears against the defendant, I move that he be discharged;' and then Judge Bucknor discharged Washington.' On cross-examination he stated he was the brother-in-law of the sheriff, and that there was bad feeling between the sheriff and Rude, but that witness had no feeling against Rude.

Counsel for Rude 'then wanted to ask the witness if the sheriff had not been held to answer a criminal charge at that term of the court, which the court refused to allow, upon the ground that the best evidence was the papers on file in the court, the court having judicial knowledge of them, as the attention of the judge had been called to them in open court at that term, and that, in his opinion, it was immaterial, anyway.'

W. F. Forward testified: 'On October 19th I was sitting in the office which is across the hall from the county judge's office. The door was open. I saw Rude come out of the county judge's office into the hall with Mary Murray, and have some conversation with her. He then went back into Judge Bucknor's office, and came out with some money in his hand,--some bills and some silver. I saw him hand to Mary some money, part paper and part silver, and then I heard him say to her, 'Now, take this, and go home.”

Michael Lotta testified: 'I was in front of the courthouse, at the window of the county judge's office, October 19th. When the deputy sheriff brought Washington to Judge Bucknor's office, I heard Judge Bucknor say, 'Where is Rude?' Then I saw Judge Bucknor get up, and go off down the street in the direction of Mr. Rude's office. He stopped on the sidewalk, and stood around until Mr. Rude joined him. Then Rude and Bucknor came back together. Then, after they had gone into the county judge's office, Mr. Rude called Mary Murray out into the hall. I could see into the hall from the front of the courthouse, and I saw Mr. Rude in conversation with Mary Murray. Mr. Rude then went into the county judge's office, and came out immediately with some money in his hands, and paid some money to Mary Murray. She took the money and left, and Mr. Rude went back into the county judge's office.'

Rude in his own...