Jackson v. State , 21 Tex. 668 ( 1858 )

Wheeleb, J.

The Statute (Act of 1854, p. 118, Sec. 1,) provides that any prosecution under the 5th or 8th Sections of the Act to which this is an amendment, (Hart. Dig., Art. 56, 59,) “ may be instituted by motion or information of two or more practicing attornies ; ” and it is objected that the motion in this case is signed by but one. It is to be observed, however, that the defendant appeared and answered to the motion without objection to the form of the proceeding. This must be deemed a waiver of the objection, unless it be a matter so vital to the proceeding that it could not be waived: and that, it is conceived, is a proposition which cannot be maintained. The objection goes only to the form of the proceeding ; not to the substance of the accusation ; and it is not perceived that there is anything in principle to prevent the defendant from waiving it, if he saw proper. If the objection had been taken, it might have raised the question whether it is competent for the Court to deprive an attorney of his license for any of the causes mentioned in the 5th or 8th Sections of the Act amended, unless two attorneys of the Court would volunteer to institute a prosecution. And if that question were presented, we should hesitate to hold that the Court would be powerless to protect itself and suitors, and the administration of justice, from any malpractices or abuses an attorney might perpetrate; or that the Court was under the necessity of admitting one to retain and exercise the privileges of an attorney of the Court, who had been guilty of a gross abuse of his privilege, or had been convicted of an infamous crime. Th'e 5th Section of the amended Act would seem to forbid such a supposition. It provides that no person convicted of certain crimes therein enumerated shall be capable of obtaining a license to practice as an attorney; and if licensed, any Court of record, in which such person may practice, shall, on proof of his conviction of such crime, strike his name from the roll of attorneys.

It will not be contended that the Court before whom the conviction took place might not thereupon cause his name to be stricken from the roll of its attornies, without further proof or proceedings to ascertain the fact of the conviction. It has been truly said that, as a class, attornies are and have always been the intrepid vindicators of individual rights, and the fearless asserters- of the principles of civil liberty, existing where alone they can exist, in a government not of parties or men, but of laws. As a class they well deserve the appellation of an enlightened, chivalrous and honorable profession. Individuals of the class may, and sometimes do forfeit their professional franchise by abusing it; and a power to- enforce the forfeiture must be lodged somewhere. Such a power is indispensable to preserve the administration of justice.

In the absence of special provision to the contrary, the power of removal is, from its nature, commensurate with the power of appointment; and it has accordingly been every where held to be the province of the Judges to withdraw the privileges of attorneys where they abuse those privileges. (Austin’s case, 5 Rawle. 191, 203-4; Dillon v. The State, 6 Tex. R. 55 ; Bac. Ab. Tit. “ Attomey ; ” Smith v. The State, 5 Yerger, 228.)

The end to be attained by removal, it is said, is not punishment, but protection. (5 Rawle. 204.) The power rests upon grounds distinct from that of punishment for contempt. It may be properly exercised where there has been no contempt, as in the cases mentioned in the 5th Section of the Statute before referred to. It is one thing to remove from office for unfitness, and another to punish for contempt. (Id.) The Act of 1854 embraces both classes of cases; and doubtless both may be proceeded upon together, and may indeed be inseparable in many cases. But there is no necessary connection between a contempt of Court and malpractice. The present appears to have been intended as a proceeding under the Statute; and had it been objected that it did not conform to its requirements, it might have been a question whether it could be maintained. In the case of Dillon v. The State, (6 Tex. R. 55,) the proceeding was instituted by two attornies; but the Court, having had its attention called to the accusation, appears to have proceeded upon its own information derived from an examination of the records before the Court; and no question was made of the regularity of the proceeding. But it will suffice to dispose of the objection, that as the defendant answered without making it, we think it must be considered as waived.

The defendant was proceeded against upon several grounds, but the finding of the jury is responsive to but two, and it is plainly inferable from the charge of the Court, that the evidence related to but two. The others were abandoned or unsupported by evidence. It does not appear upon which of the-grounds embraced in the finding the Court proceeded to judg- ‘ ment. But as the finding was upon issues submitted by the Court, it is evident both were regarded as material, and the judgment doubtless proceeded upon both. In this there was-error. The first, if a matter cognizable by the Court in such a proceeding, was so only as a contempt; and the Statute-(Act of 1854, p. 118, Sec. 2,) declares that “ no Court shall strike an attorney or counsellor at law from the rolls for contempt, unless it involve fraudulent or dishonorable conduct, or malpractice.” The conduct here referred to must mean conduct as an attorney, not merely as a person. It is only his official conduct with which the Court is concerned. It is the prostitution of his office to corrupt practices that can bring him in collision with his professional fidelity. Applying opprobrious and abusive epithets to the Judge, in vacation, cannot be considered “ a contempt involving fraudulent or dishonorable conduct or malpractice,” within the meaning of the-Statute. In so far, therefore, as the action of the Court was-founded on the first ground embraced in the finding, it is unsustained. Can it be maintained upon the remaining ground, the alleged malpractice ? Upon this question there may be more doubt. It is a grave charge ; and one which, if established, would undoubtedly justify the expulsion of the attorney. It involves a violation of his official oath ; and it has been truly said, the attorney who deliberately violates the sanctions of a lawful oath is .unworthy of further confidence society has no other hold upon him. If guilty of corrupt practices in his official conduct, his guilt can be no less than this. Does the finding of the jury, or even the accusation upon which the finding is based, warrant the legal conclusion that he is thus guilty ? We think it does not. The special verdict is exceedingly vague and unsatisfactory. It simply finds that he was retained by McMahon before he was retained by Sexton. Non constat that he was retained by Sexton at all in that suit; or if he was, he may have been first discharged by McMahon. But the gravest omission is, that it does not find the act to have been done with a corrupt motive or evil intent; or repel the supposition that it may have been from inadvertence, or some excusable or justifiable cause. The corrupt motive, or fraudulent intent, is of the very essence of the offence, and ought to have been found by the jury, if they deemed the evidence to warrant them in so finding. Would the Court be warranted in drawing the conclusion, as a legal consequence of the finding, that the accused acted corruptly, in deliberate violation of his official oath? We think not. And it is well settled that, where the jury have found a special verdict, all the facts and circumstances essential to constitute the offence must be found, in order to enable the Court to give judgment. For the Court cannot supply a defect in the statement made by the jury on the record by any intendment or implication whatever. (1 Chit. Cr. L. 644; Commonwealth v. Call, 22 Pick. 509.) This is the well settled rule even in civil cases. (Bac. Ab. Tit. “Verdict.”) The Court cannot look to matters in the record outside of the verdict, as a basis on which to render judgment. And accordingly this Court has held that where a jury has intervened, and all the issues have been submitted to their decision, their verdict must constitute the basis of the judgment. It is upon what the jury-have found—not what they might have found—that the Court proceeds to render judgment. (Claiborne v. Tanner, 18 Tex. R. 68.)

But if we were at liberty to look to matters outside of the verdict, there being no statement of facts, there is nothing outside of the verdict to support the judgment.

If, however, the finding of the jury upon the several grounds embraced in it were less defective, we might well hesitate to affirm the judgment upon that finding alone, when it is manifest that the Court proceeded upon other grounds. We cannot say what influence the finding upon the first charge may have had upon the mind of the Court. The Court was not under a legal necessity of striking the attorney from the rolls absolutely, though satisfied that he had acted improperly in respect to the alleged retainer. The judgment might have been one' of suspension rather than absolute expulsion, depending on the discretion of the Court to be guided by the degree of professional delinquency shown by the evidence. And we can hot say that had the judgment been rested alone on the charge of malpractice, this might not have been the result. It would seem, therefore, that the proceeding upon the contempt, in a case of this nature, where the judgment is not merely the conclusion of law upon the verdict, but in some degree matter of judicial discretion, ought to occasion a reversal of the judgment.

In the view we have taken of the case, it does not become necessary to enter upon an examination of the doctrine of con-tempts, We are of opinion that the judgment was not warranted by the verdict; and that it be therefore reversed and the cause remanded.

Reversed and remanded.