Thompson v. State , 72 Ga. App. 852 ( 1945 )

(a) The defendant can not here contend that he was never convicted of a crime involving moral turpitude. This question has been decided adversely to him.

(b) Where an attorney has been convicted of a crime involving moral turpitude, he may be disbarred from practicing law in this State by the superior court in which the conviction was obtained, without any other or further notice, process, or service.

(c) A non-resident attorney, after having been convicted in this State of a crime involving moral turpitude while he was a resident, may be disbarred by a judge of the superior court of this State, without any other or further notice, process, or service.

DECIDED SEPTEMBER 10, 1945. REHEARING DENIED SEPTEMBER 29, 1945. The plaintiff in error, Clarence J. Thompson, hereinafter called the defendant, instituted against the State of Georgia, hereinafter called the plaintiff, a motion to vacate a judgment of the superior court of Fulton County disbarring him from the practice of law. This motion was stricken on demurrer. On this judgment the defendant assigns error.

History of the case: The defendant steps into the record on June 11, 1931, when he was admitted by Fulton County superior court to practice law in the courts of this State. We find him next, in February, 1936, employed as an inspector in the water-works department of the City of Atlanta. On the 17th day of January, 1941, the grand jury of Fulton County returned an indictment, charging him with conspiring with another to cheat and defraud the city out of upwards of 800,000 cubic feet of water during the years 1936 through 1940. It was charged that he changed and manipulated the mechanism of the city-water meter so that this quantity of water passed through the meter unregistered. The defendant filed numerous demurrers to the indictment, both general and special. The court overruled these demurrers. Exceptions pendente lite were filed. The case proceeded to trial, resulting in a conviction of the defendant. A motion for new trial was overruled. To this judgment the defendant excepted. He brought the case here on assignments of error on the exceptions pendente lite as well as on the judgment overruling his motion for a new trial. In the consideration of the case here, this court in a divided opinion reversed the court below on the exceptions pendente lite. The judgment was filed in the office of the clerk of this court. Within due time the State of Georgia filed a motion for rehearing. By a divided opinion, this motion was granted. On this rehearing the attorney for the defendant (being the same attorney then as in the instant case) contended, and had this court pass upon the contentions: (a) that the State of Georgia was without authority of law to file a motion for rehearing; (b) that the opinion of this court reversing the court below on the exceptions pendente lite set aside the verdict of conviction; (c) that for this court to substitute an opinion on rehearing, as the State was urging, affirming the judgment of the court below, in lieu of the previous judgment reversing the judgment of the trial court, would be double jeopardy. This court in a divided opinion held adversely to the defendant on all three of these contentions, whereupon the defendant duly made application to the Supreme Court of Georgia for a writ of certiorari. That petition was denied by the Supreme Court, without assigning any reason therefor. In due course the defendant obtained a supersedeas from this court, and filed a petition to the United States Supreme Court for a writ of certiorari. This application was likewise denied. Then the clerk of this court forwarded the remittitur to the clerk of the superior court of original jurisdiction. The judge of the superior court of Fulton County passed the following order disbarring the defendant from the practice of law in this State: "It appearing to the court that Clarence J. Thompson was indicted in Fulton Superior Court under indictment number 53,369 for the offense of cheating and swindling which was an offense involving moral turpitude; and it appearing that said Clarence J. Thompson was tried and convicted of said offense on January 27, 1941, which judgment was affirmed by the Court of Appeals of Georgia (see 67 Ga. App. 240), and that said judgment of affirmance was made the judgment of this court; and it appearing to the court that said Clarence J. Thompson was, on June 11, 1931, admitted by Fulton County superior court to practice law in the courts of this State, as appears of record in the office of the clerk of this court (see Minute Book 138, page 525); and it further appearing that all of these facts are known to the court and are matters of record in said court — it is, therefore, ordered, adjudged, and decreed that said Clarence J. Thompson be and he is hereby forever disbarred from the right to practice law in any of the courts of the State of Georgia. This 11th day of March, 1944."

On April 29, 1944, the defendant filed a petition, which was afterwards amended, to vacate and set aside the judgment of disbarment above set forth. The petition to vacate alleged in substance: (a) that at the time of the judgment of disbarment the defendant was not a resident of Georgia, but was a resident of Detroit, Michigan; (b) that he had no notice of such proceedings and had no opportunity to be heard; (c) that the final decision of this court affirming the verdict and judgment of conviction was void, because (1) the State was without authority to make a motion for a rehearing, and (2) that for the court to substitute, on rehearing, a judgment of affirmance for its former judgment of reversal amounted to double jeopardy. The State demurred to this petition as being insufficient as a matter of law to be the basis for vacating and setting aside the judgment of disbarment. The judge of the superior court sustained the demurrer and dismissed the motion to vacate. It is on this judgment that the defendant bases his assignments of error in the instant case.

We have set forth a history of the case on which the defendant seeks a reversal in order that we may more briefly and clearly discuss the contentions involved and the law applicable thereto as we view it. We may coherently and logically approach and decide the issues in the order set forth below. To summarize the defendant's motion to vacate, it is in effect alleged: (a) The legal effect of the proceedings had on appeal following his conviction was to acquit him of the crime, in that the Court of Appeals first held that the trial court erred in refusing to sustain his demurrer to the indictment and reversed the judgment of the court below; that the Court of Appeals thereafter granted a motion for rehearing at the instance of the State; and that after doing this the Court of Appeals entered a judgment of affirmance in lieu of the judgment of reversal; that in so doing the Court of Appeals disregarded and overlooked specific parts of the State and United States constitutions as they relate to double jeopardy; that for these reasons the judgment of the Court of Appeals in affirming the conviction of the defendant in the lower court was a nullity, and therefore the defendant had never been convicted of a crime involving moral turpitude. (b) The disbarment was entered without notice to the defendant. (c) At the time the order was entered and for a year prior thereto, the defendant was not a resident of Fulton County, Georgia, but was a resident of the State of Michigan. We will deal with these contentions in the order named. (a) From reading a history of the case, it will be seen that the contention, to the effect, that the defendant has never been legally convicted of a crime involving moral turpitude because of the proceedings in the Court of Appeals, has been disposed of adversely to the defendant by this court inThompson v. State, 67 Ga. App. 240 (19 S.E.2d 777), and page 910 of the same volume wherein the Supreme Court of Georgia denied application for certiorari, and a denial of the writ of certiorari by the United States Supreme Court in 317 U.S. 667 (63 Sup. Ct. 72, 87 L. ed. 536). It would seem that the defendant is precluded from again bringing up this question. So far as he is concerned, the law of the case is that he was convicted of a crime involving moral turpitude. The fact that it was by a divided opinion of the court makes no difference. This contention has no merit.

(b) Our statutes provide: "An attorney must be removed by the superior court of the county of his residence for the following causes: 1. Upon his being convicted of any crime or misdemeanor involving moral turpitude. In either case the record of his conviction is conclusive evidence." Code, § 9-501 (1). While it is the general rule in disbarment proceedings that an attorney must be served with notice, there are recognized exceptions to this rule. In 7 C. J. S. 769, § 27, under "Exceptions To Rules Requiring Notice," this authority states that no notice is necessary "where he has been convicted of a felony or a misdemeanor involving moral turpitude." The principle that, where an attorney has been convicted of a crime involving moral turpitude, he is not entitled to any further notice or process before he can be disbarred, is supported by authorities. In dealing with this question, 5 Am. Jur., p. 435, § 289, reads: "On the other hand, it is held that an attorney is not constitutionally deprived of his rights by striking his name from the roll, without further hearing, upon his conviction of a crime involving moral turpitude, since he had his day in court when he was put on trial for the crime; particularly is the attorney not entitled to notice by citation or other processes when the record of conviction is by statute made conclusive as against him." It will be noted that the terms of our statute on this question are imperative, and that a conviction of an attorney for an offense involving moral turpitude is conclusive of his unfitness to practice law in this State. In the case of Williford v.State, 56 Ga. App. 840, 852 (194 S.E. 384), this court, quoting approvingly from the case of DeKrasner v. Boykin,54 Ga. App. 29 (186 S.E. 701) said: "And here we might state, by way of parenthesis, that this fact alone, under the Code, § 9-501, providing that an attorney may be disbarred ``upon his being convicted of any crime or misdemeanor involving moral turpitude. In either case the record of his conviction is conclusive evidence,' would be sufficient authorization for the court to enter an order of disbarment, based upon such record, without further notice or process." It would thus seem that this contention on the part of the defendant is without merit.

(c) From the history of the case, it will be observed that the defendant was admitted to the practice of law in Fulton County in 1931, and that he was employed by the City of Atlanta as an inspector in the waterworks department during the years 1936 to 1940, inclusive. It is clearly inferable from the record that the defendant changed his residence from the State of Georgia to the State of Michigan after his conviction of the offense involving moral turpitude. Able counsel for the defendant invokes that portion of the Code, § 9-501, which provides that "an attorney must be removed by the superior court of the county of his residence." This excerpt from the statute clearly has reference to attorneys who reside in this State. It would indeed be an anomaly to hold that the judge of the superior court of Fulton County, where the defendant was admitted and where he enjoyed the privileges of the practice of law in a county where he resided, until he left that county after conviction under a criminal cloud, could without notice disbar an attorney who resided in such county, and on the other hand could not disbar the defendant because he had left the jurisdiction of this State and established himself elsewhere. Our general law provides that a citizen of a State must be sued, with certain exceptions, in the county of his residence, but that a non-resident may be sued in any county of the State in which he may be found and served with a process. By analogy it follows, from what we have said above, that the defendant could have been disbarred in any county of the State, by a judge of the superior court of the circuit including such county, upon the production of a certified copy of the conviction, without any further notice. This ground is without merit.

The court did not err in sustaining the demurrer to the motion of the defendant to vacate the judgment of disbarment.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.