Dickerson v. State

120 Ark. 9 | Ark. | 1915

Kirby, J.,

(after stating the facts). Appellant insists that the court was without authority to strike his name from the roll of attorneys of the chancery court and disbar him from practice.therein as part of the punishment inflicted for contempt and that the judgment is not supported by the testimony.

The contempt appears to have been one committed in the immediate view and presence of the court. The evidence discloses that when appellant as attorney for Edith Garvey made application to the. chancellor to sue as a poor person, he was asked if Garvey was in town and told to notify him of the application. He later returned to the court and without explanation presented the said affidavit, showing the waiver of service. 'The testimony shows at best in his favor that the statement was written out at his dictation by a stenographer and that Garvey’s name was signed by the stenographer, a Miss Simmons, at the- request of a man present, whom Dickerson told her. was Garvey. It was not dated at the time, which was some time before the 29th day of March, and was dated upon that day when presented to the chancellor and appeared on the face of it to have been made and sworn to on that day.

If it be regarded a proceeding to punish for contempt not committed within the presence of the court, the written charge made upon the record of the court of which ,he was notified and given an opportunity to answer was sufficient, as held in CarlLee v. State, 102 Ark. 122. The statute authorizes the court to punish for criminal eon-tempt by a fine and imprisonment and provides that the persons punished shall still be -liable to indictment -for the offense if it is an indictable one, “but the court before which a conviction may be had on such an indictment .shall in forming its sentence, take into consideration the punishment before inflicted.”

(1) Disbarment of an attorney is no part of the punishment prescribed by statute for any contempt of which he may be guilty, nor does. Ms punishment for any such contempt prevent his being disbarred from practicing in any court, or all the courts of the State, if such act is one warranting disbarment.

(2) The statute prescribes the proceeding for disbarment, which contemplates definite charges exMbited against the offender, and a time -for a hearing fixed, of which he .shall be notified. Kirby’s Digest, § § 450-466.

(3) “Such proceedings are not criminal, but civil in their nature. They are not instituted nor intended for the purpose of punishment. The purpose of the proceedings for suspension and disbarment is to. protect the court and the public from attorneys who, disregarding their oath, of office, pervert and abuse those privileges which they have obtained by the high office they have .secured from the court.” Wernimont v. State, 101 Ark. 216.

The accused is entitled to a trial by a jury in a proceeding to disbar, if he requests it, and the judgment of suspension or removal operates as a removal or suspension from practice in all the courts of this State.

(4-5) The proceeding for the pumshment of contempt of court charged herein is criminal in its nature as distinguished from civil, and although the written charge against the accused of which he was notified and appeared and defended against would have been sufficient as a charge in a disbarment proceeding, if it had notified the appellant that that was the purpose of it, it only put ■him on notice of and reqmred him to answer a charge for contempt.

It was not intended that a proceeding to punish for contempt and one for disbarment of-an attorney should be joined in the same charge, nor that disbarment or suspension from practice as an attorney and counselor at law should 'be inflicted as punishment for -contempt of court, although courts have inherent power to punish for contempt and those which grant licenses to attorneys have inherent power to revoke them. Our law does not contemplate that an attorney may (be removed or suspended from the practice of his- profession, unless up-on written charges preferred and after notice and an opportunity to defend has been given. The punishment of appellant for contempt by fine and imprisonment would not have prevented his trial for disbarment upon the same charge, but he could not be tried at the -same time, upon the one charge and punished for contempt 'by fine and imprisonment and removed from the practice of law -or disbarred, without his consent. It can not be -said that he did not object to -such proceeding, for there was- no notice that he was on trial for -disbarment or that any -such result would follow his conviction for contempt, and since the judgment -of removal or suspension of an attorney in a disbarment proceeding by a court having authority to render it, operates while it continues in force as a removal or suspension from practice in all the courts -of the State, no -such judgment should be rendered except upon a formal charge therefor in accordance with the statute. Beene v. State, 22 Ark. 156; Nichols v. Little, 112 Ark. 213.

The court erred in its judgment disbarring the attorney and being without authority to order his removal as punishment for -contempt in the .-proceeding, that part of its judgment will be quashed, and otherwise it will be affirmed.

It is so ordered.