Ex parte Cowing
38 P. 1090
Or.
1895
Check Treatment

Opinion by

Mr. Chief Justice Bean.

From the testimony as reported it appears that on Abgust first, eighteen hundred and ninety, Cowing filed *575in the land office at Roseburg a duly verified application to purchase the land referred to, containing, among other statements, the following: “I do not apply to purchase the land on speculation, but in good faith, and to appropriate it to my own exclusive use and benefit; and that I have not, directly or indirectly, made any agreement or contract or in any way or manner with any person or persons whomsoever, by which the title I might acquire from the government of the United States may inure in whole or in part to the benefit of any person except myself,” and that he knew from his own personal knowledge the land to be unfit for cultivation, and valuable chiefly for its timber. But there is not a scintilla of evidence, aside from the alleged testimony of Cowing himself on the trial of Confer, Mead, and Mehan, even tending to show that such affidavit was false. In fact, the testimony taken in this proceeding, upon that point shows it to have been true. Cowing testified in his own behalf to that effect, and so also did Mead and Mehan, and Confer was not called as a witness. It is a disputed fact, too, on the record as to whether Cowing testified in the federal court as alleged in the petition. The witnesses for the state all testify that, as they understood his testimony, it was in effect as alleged, while about an equal number for the defendant, including himself, are ]ust as positive that he did not so testify. So far as the allegation that he had personally examined the land before making application is concerned, the testimony shows that while he did not actually go upon the particular tract applied for, yet he did go upon an adjoining elevation, where he could see the land and its character, condition, and location, and, based upon the information thus obtained, he made an affidavit that the land was unfit for cultivation and valuable chiefly for timber; and under the rulings of the land department,— of which he had knowledge, and with which he was famil*576iar,—this is a sufficient examination, within the meaning of the law, and justifies the statements contained in the affidavit: Grace v. Carpenter, 14 Decisions of the Department of the Interior, 436. It thus necessarily appears that the position of the plaintiff is that Cowing should be disbarred for committing the crime of perjury, either in making the affidavit in the land office, or in testifying in the federal court as a witness; but in either case the crime was committed, if at all, in his private capacity, and not in the line of his professional duties or employment.

As to whether a court can disbar an attorney for the commission of an indictable offense outside of the line of his professional duties, without his first having been indicted and convicted, there is some conflict in the authorities. It is perhaps the better rule that where the crime charged affects the general moral character of the attorney and his general fitness to practice his profession, and is admitted or clearly proven, the court may proceed in a summary manner to disbar him; but when the charge is of « single criminal act, committed in his private capacity, and the evidence is conflicting, and any doubt of the party’s guilt exists, no court should attempt to proceed summarily, but should leave the case to be determined by a jury: Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569; State v. Winton, 11 Or. 456, 5 Pac. 337. We have here a case in which the evidence is conflicting, and there is certainly some doubt as to whether Cowing committed perjury, either in the federal court or in making the affidavit in the land office, and under such circumstances this court ought not to proceed summarily to try the question, but should leave the case to be determined by a jury upon an indictment. And especially is this true in the case at bar, for the record shows from the testimony of such reputable citizens of Oregon City as Judge McBride, Geo. C. Brownell, D. C. Latourette, W. C. Johnson, Captain Apperson, Peter Pae,*577quet, and others, that during Cowing’s five years’ residence in that community he has home an excellent reputation for truth and veracity, and as an honorable member of his profession. In addition to this there appear in the record letters and certificates from the state of Minnesota, where Cowing resided for many years prior to his coming to Oregon, signed by the governor, judge of the district court, attorney-general, and other persons of position and standing, certifying that he bore a like reputation in that state, and stood high in the estimation of the people, both in his personal and professional character, and had been intrusted with positions of honor and trust, the duties of which he discharged with fidelity. Under such circumstances, it is eminently just and proper that when an attorney of the reputation and standing of Cowing, as shown by this record, is accused of the commission of an indictable offense, committed outside of the line of his professional duties, he should be accorded the right of a trial before a jury, on an indictment regularly found against him, before he is deprived of the valuable right to practice his profession. It follows that the petition must be dismissed, and it is so ordered.

Dismissed.