State Ex Rel. Sanford v. Riddle , 213 Ala. 430 ( 1925 )

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 Courtin 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 otherstates, and not in federal courts of the samestate. 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 App. Div. 217,183 N Y S. 401 (conspiracy to commit felony under section 37 of United States Criminal Code); In re Lindheim, 195 App. Div. 827,187 N Y S. 211 (conspiracy to defraud United States); In re Roth,210 App. Div. 487, 206 N.Y. S. 232 (extortion — crime and conviction in California); In re Dubin, 211 App. Div. 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 Wn. 569, 103 P. 805 (offense against pension laws of United States); In re Wells,121 Wn. 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 court of the United States, as when applied to a conviction in the courts of this state. It was not because of the particular court which adjudges the attorney guilty, or the place where it sits, * * * but because of the bad moral character of such attorney, which the Legislature deemed was conclusively proved by such record of conviction. No reason appears for the conclusion that the section should be held to apply only to convictions in the courts of this state."

Other cases are cited in the briefs of counsel, but our examination of them does not indicate that they are sufficiently in point to merit their review in this opinion. But, apart from the question of authoritative precedents, we think that when section 6256 is construed in connection with its cognate sections 6257, 6243, and 6250, it becomes entirely clear that the ground of disbarment intended is a conviction in either the state or the federal court.

Section 6243 requires every attorney to take an oath that he will support the Constitution of the state of Alabama and of the United States. Section 6250 prescribes it as the first duty of an attorney "to support the Constitution and laws of this state, and of the United States." Section 6257 provides that an attorney may be removed or suspended:

"3. For a willful violation of any of the provisions of section 6250 or section 6251" — including any willful violation of state or federal laws.

In these provisions the Legislature has made no distinction, as to an attorney's duty to honor and obey them, between state and federal laws. The federal courts in Alabama are not foreign courts. They are an integral part of the judicial structure of the state, less important to the people than state courts, because more limited in their field of operation, but of equal honor and dignity. Their juries are drawn from the same citizenry, and their rules of evidence and procedure for the most part follow those of the state.

Looking to the manifest purpose of this statute (section 6256) and its several cognate sections, we cannot reasonably conclude that the disbarment provided for is to be the result of conviction only in the courts of the state of Alabama, and that no such result is to follow a conviction in the federal courts established and sitting in Alabama. We can recognize no difference between the moral effects of a conviction in either court. If any attorney should be convicted of violating a federal statute, in a federal court, the offense involving any of the elements of moral turpitude, it is inconceivable that the effect upon him, or upon his professional fitness and standing, should be different from that resulting from a similar conviction in a court of the state. And, if analogies are to be examined, it would be a strange thing for the right to vote and the right to hold office — rights of the highest dignity and importance to every citizen — to be taken away from citizens of Alabama who have been convicted in a federal court of treason, felony, or any crime involving moral turpitude, and yet such convictions be intended to be excluded from consideration in determining what shall be sufficient to disqualify a citizen from pursuing a profession founded essentially on honor, confidence and trust.

The language of section 6256 is general, and, in common understanding, as well as for fitness for the purpose in view, it must include convictions in federal as well as in state courts; and this is in harmony with the great weight of reason and authority. We do not decide whether or not a conviction of crime in another state, or in foreign territory, would come within the terms of our statute, because that question is not now presented.

As to the nature of the offense for which the respondent was convicted in the federal court, we think that opinions can scarcely differ. Very clearly it involves the elements of moral turpitude. The charge was framed under section 215 of the United States Penal Code, and there could have been no conviction, except upon proof of false and fraudulent representations by the defendant made in writing to a third person for the purpose of obtaining money from him. This act, whether it actually resulted in so obtaining the money or not, was of itself a distinct offense under the laws of Alabama, for which he could have been indicted and convicted in any court of the state having jurisdiction. Section 4131, Code 1923; White v. State, 86 Ala. 69, 5 So. 674; Colly v. State, 55 Ala. 85; 25 Corp. Jur. 637, § 73. It is of no consequence that the offense charged was an attempt to defraud by the use of the United States mails, for the attempt was a crime whatever agency was used in its perpetration. So, also, the conspiracy charged was itself a misdemeanor under the laws of Alabama, though no overt act had been done towards its accomplishment (Thompson v. State, 106 Ala. 67, 17 So. 512), and it also involved moral turpitude per se.

The latest decision on this subject is In re Comyns (Wash.)232 P. 269. The respondent therein, as here, was convicted in a federal court of violating section 215 of the United States Penal Code, by using the mails for the purpose of obtaining property by false pretenses. The court said:

"It is claimed by respondent that the crime of which he was convicted does not constitute either a felony or a misdemeanor under the statutes of this state, and therefore the record of his conviction in the United States court is not sufficient evidence to justify the board in disbarring him from the practice of law. Respondent contends that the Legislature, in using the words 'felony' or 'misdemeanor' involving moral turpitude, meant only an offense that is a felony or misdemeanor under the statute of this state, and not a felony or misdemeanor as defined by the laws of a sister state, or by the laws of the United States. Our attention has been called to the following cases supporting the theory of respondent: State ex rel. Grievance Committee v. Biggs, 52 Or. 433, 97 P. 713; In re Ebbs, 150 N.C. 44, 63 S.E. 190, 19 L.R.A. (N.S.) 892, 17 Ann. Cas. 592. In these cases the offense constituting the crime was not a crime under the statute of the state in which the disbarment proceedings were pending. Respondent in this case was charged with using the mails of the United States for the purpose of obtaining property under false pretenses. The law of this state makes it a felony to obtain the property of another under a fraudulent or false representation, as follows: [Setting out the statute.]"

The court then shows that an attempt to commit that offense is also a crime under the laws of the state, and that it clearly involved moral turpitude, and the disbarment was sustained solely on the record of the conviction.

The statute does not require that the disbarment conviction shall be for an offense punishable eo nomine under the laws of Alabama. The requirement is merely that it involve — that is, embrace — moral turpitude as one of its essential elements. In Ex parte Biggs, 52 Or. 433, 97 P. 713, which was a disbarment proceeding under a statutory provision the same as ours, the court said:

"Before an attorney can * * * be removed or suspended under the provision of the statute invoked in this case, it must appear that he has been convicted of either a felony or misdemeanor as these terms are defined in our statute, although we do not think it necessary that the conviction be had in a court of this state: In re Kirby, 10 S.D. 322, 414,73 N.W. 92, 907, 39 L.R.A. 856, 859. If the conviction is of an offense which, under the laws of this state, is a felony or a misdemeanor, and if a misdemeanor involving moral turpitude, it is sufficient ground for his removal or suspension, under the provision of the statute, whether such conviction took place here or not. The theory of the statute is that an attorney who is guilty of such an offense is unworthy to be an officer of the court, and that the judgment of conviction is conclusive evidence of such unfitness. But such effect cannot be given to the conviction alone, unless it was either a felony or misdemeanor as defined by the laws of thestate. Now 'conspiracy to suborn perjury,' for which it is charged defendant was convicted in the federal court, is not a crime at all in this state. We have no common-law crimes, and there is no statute creating such an offense. * * * It follows, therefore, that the crime for which defendant was convicted is neither a felony nor a misdemeanor within the meaning of the disbarment statute, and he cannot be either removed or suspended on account of such conviction alone." (Italics supplied.)

This decision is not in conflict with what we have written, but, on the contrary, fully sustains us. It results, from the foregoing conclusions of law, that the trial court erred in the instruction given to the jury, and the judgment must be reversed, and the cause remanded for another trial.

Reversed and remanded.

All the Justices concur.