No. 1331 | Haw. | Sep 14, 1922
Lead Opinion
(Edings, X, dissenting.)
This is an information by the attorney general of the Territory of Hawaii alleging miscondnct on the part of E. R. Bevins, an attorney licensed to practice in all of the courts of the Territory and praying for his disbarment. The information sets forth six charges which will be herein considered separately.
First chargeIn an action of ejectment brought in the circuit court of the second judicial circuit by one Ambrose against one Kealakaa a document, reading as follows, was filed under the title of the court and cause:
*572 “STIPULATION AND DISCONTINUANOB.
“It is hereby stipulated and agreed by and between the parties to the above entitled action that the said defendant, Kealakaa, shall and does hereby disclaim and surrender to the said plaintiff, J. W. Ambrose, all claim of title to the land and premises situate at Lahaina, Island of Maui, described in the' complaint filed herein, being a portion of the land described in R. P. 1702, L. U A. 3834, containing an area of 25/100 of an acre more or less.
“And in consideration whereof the said plaintiff, J. W. Ambrose, does hereby discontinue further proceedings in said cause, he (plaintiff) to pay all costs of court incurred herein and waives all claim of damages against the said Kealakaa which he may have in the premises. “Dated at Wailuku, Maui, October 25, 1916.
“(Sig.) J. W. Ambrose.
“Homes & Olson
“By (Sig.) W. O. Smith
Attorneys for plaintiff.
“(Sig.) Eugene Murphy
Attorney for defendant.”
At that time Mr. Eugene Murphy was sole attorney for the defendant in that action. Subsequently Kealakaa filed in the cause a motion to set aside this so-called “Stipulation and Discontinuance” upon the ground that it was not signed by movant nor assented to by him; that it was entered into without the knowledge or consent of the movant; that it was not explained to him until long after the same was signed and filed by Murphy; and that Murphy was not authorized by the movant to enter into the stipulation and agreement.
In support of this motion there was filed an affidavit by Kealakaa and a separate affidavit by one Joseph Kekoa, that of Kealakaa being to the general effect that
In tbe preparation of this motion and these affidavits tbe respondent, E. E. Bevins, served as tbe attorney and adviser of Kealakaa. Tbe respondent served in tbe same capacity in all later stages of tbe action. Upon tbe bearing of tbe motion to set aside, tbe testimony not only of Kealakaa and Kekoa. but of sevéral other witnesses was taken. Among these others were tbe Honorable W. O. Smith, long a prominent member of tbe bar of this court, and Mr. S. K. Kamaiopili; a minister of tbe gospel. To Mr. Kamaiopili tbe Hawaiian language is tbe language of bis birth. Mr. Smith, as it appears from tbe record, is perfectly familiar with tbe Hawaiian language. Tbe testimony of these two witnesses was to tbe general effect that prior to tbe preparation of tbe “Stipulation and Discontinuance”its subject-matter was fully discussed with and explained to Kealakaa in tbe Hawaiian language and that be was familiar with its contents and authorized a waiver of bis rights in tbe manner set forth in tbe document. Tbe evidence of Kealakaa, and perhaps also that of Kekoa, was to tbe effect that no such explanation was made to Kealakaa and that be did not understand that be was entering into any agreement constituting a waiver of bis rights in tbe land involved in tbe action and further to tbe effect that he at no time
The circuit judge who presided at the hearing denied the motion. Shortly thereafter Ambrose instituted a second action of ejectment to try the title to the same real estate (upon the theory; doubtless, that the discontinuance of the first action did not bar'the plaintiff from commencing a second action for the same cause). Kea-lakaa defended the second action, with the respondent acting as his attorney. When the second case came to trial the plaintiff objected to the admission of any evidence offered by Kealakaa tending to prove adverse possession accruing prior to the date of the “Stipulation and Discontinuance” and the court sustained the objection and excluded all evidence of this nature offered by Kea-lakaa. The theory of the objection and of the ruling was that the filing of the “Stipulation and Discontinuance” and the rendition of the decision upon the motion to set the same aside constituted a bar against any claim by Kealakaa of title to the land accruing prior to their date. Reviewing that ruling upon writ of error this court (Ambrose v. Kealakaa, 26 Haw. 412" court="Haw." date_filed="1922-06-08" href="https://app.midpage.ai/document/ambrose-v-kealakaa-6485715?utm_source=webapp" opinion_id="6485715">26 Haw. 412) held that neither the filing of the “Stipulation and Discontinuance” nor the decision upon the motion to set aside the same constituted such a bar, and further that “it is at least open, to Kealakaa to claim, and to adduce proof in support of that claim, that the execution of the document was without his authority and without his knowledge” and that “the question of authorization should be left to the jury for it to determine upon the evidence adduced by both parties.”
Three subdivisions or specifications are presented by the attorney general under the first’ charge, namely, (a) that it was the respondent’s duty as county attorney to prosecute Kealakaa for perjury committed in his affidavit
The respondent has testified in the case at bar that he did not at any time know, and does not now know, that Kealakaa committed perjury. If Kealakaa came to the respondent and employed Mm as successor to Murphy, as he did, and if in so doing he asserted to the respondent his ignorance of the essence of the transaction as set forth in the “Stipulation and Discontinuance” and expressed a desire to have his claim to the land asserted and protected the respondent is not to be condemned for presenting Ms client’s evidence to the court and for seeking an adjudication upon his client’s claims as to his understanding, or failure of understanding, relating to the transaction in question. Without detracting in the least from the integrity and the veracity of Mr. Smith and Mr. Kamaiopili, it cannot be held as a matter of law that the mere fact that their testimony was entirely at variance with that given by Kealakaa would give the respondent knowledge that perjury had been committed by Kealakaa. The question at issue between these two witnesses, on the one hand, and Kealakaa, on the other, was largely one as to what Kealakaa understood, or did not understand, in the interview had with him by the two witnesses. It cannot be said as a matter of law that the understanding of the two witnesses necessarily excludes the possibility that Kealakaa in reality did not
It is indeed regrettable that the law as it stands at present permits a county attorney to attend to civil business other than that of his every-day clients, the community and the county which he represents. This very Kealakaa case constitutes an illustration of the evils and embarrassments permitted by the existing system. If the respondent, as county attorney, had not served as attorney for Kealakaa in these civil suits, he might conceivably have deemed it to be his duty upon the very same state of the evidence to institute criminal proceedings for perjury against Kealakaa. He accepted employment from Keala-kaa under circumstances and at a time when such acceptance was- not in violation of any statutory duty of his. The mere action of ejectment, when he accepted employment under it, did not arise out of any state of facts upon which it was the county attorney’s duty to act in criminal proceedings on behalf of the county; and yet, having properly accepted the employment, he perhaps became disabled, by reason of that very employment and of the point of view it gave him with reference to Kea-lakaa’s statements and claims and of the duties which it devolved upon him as attorney for Kealakaa, from viewing the evidence of Kealakaa in the same light as a wholly disinterested county attorney might have viewed it. The law, however, permitted him to accept the employment which he did and if by reason of that employment or for other reasons he in good faith regarded the evidence of Kealakaa as true or was unable to determine for himself that it was untrue, he cannot be condemned
As to the tMrd specification the evidence adduced be-' fore us shows that the essential facts are not as set forth in the charge. The evidence is clear and undisputed. It shows that the respondent did not volunteer to go before the grand jury which was investigating the matter of the alleged perjury by Kealakaa but went there simply because he was summoned by the grand jury. Having appeared in response to the summons the grand jury caused him to be sworn ás a witness and under oath he was asked a number of questions by the grand jury concerning his knowledge of the alleged perjury. His evidence, it is true, tended to support a finding that Kea-lakaa had not in the affidavit or in his testimony committed perjury; but if the respondent testified to the truth as he knew it (he says that he did and we find nothing-in the evidence to contradict him) he did not violate any professional duty in so testifying. The respondent also stated Ms opinion to the grand jury, wMle under oath as a witness, that Kealakaa was not guilty of perjury, but it was given in response to a direct request from the grand jury that he state his opinion. If the respondent’s evidence and statement before the grand jury did aid the grand jury in arriving at the conclusion that a true bill could not be found he is, nevertheless, not to be found fault with for that result. He was merely answering the questions and furnishing the opinion wMch the grand jurors themselves asked him for. It is to be noted, moreover, that the foreman of the grand jury testified in the case at bar that the grand jurors immediately prior to the calling of the respondent as a witness, and after hearing all of the testimony wMch the attorney general had presented, were inclining strongly towards refusing
Second Charge. This charge is that in violation of his duty the respondent entered a nolle prosequi in a criminal case in which Kealakaa was charged with malicious injury. The offense as charged consisted in the tearing down by Kealakaa of a fence which Ambrose had erected upon what he (Ambrose) deemed to be the boundary between his land and the land of Kealakaa. It appears from the evidence that this was the third time that Kealakaa had torn down a fence erected by Ambrose substantially upon this same alleged boundary. Am-brose’s own evidence before this court is that Kealakaa told him that he had torn down the fence because it was not on the boundary and excluded him (Kealakaa) from the possession of land which was his. This tearing down of the fence was but an incident in the long-continued controversy and litigation between Ambrose and Kea-lakaa over the piece of land already referred to. The respondent has testified that the nolle prosequi was entered because he regarded the controversy over the fence and boundary as a proper subject for a'civil suit and as not being a proper subject of criminal proceedings. The statute (R. L. 1915, Sec. 4026) says that: “An act done in the fair exercise, assertion or vindication in good faith of a supposed legal right, shall not be punishable as malicious injury.” It would seem from all the evidence before us that the act of Kealakaa in tearing down the fence was an act done in the fair assertion, in good faith, of a supposed legal right. In any event there was ample support for the view on the part of the respondent that this was the case. His error, if there was any, was a mere
Fifth charge. This charge is that the respondent presented to the supervisors of the County of Maui, for allowance and payment by the county, a claim for attorney’s fees and other expenses contrary to section 1584, R. L. 1915. In the course of the preliminary hearings of a certain criminal case the respondent, in consequence of certain statements made by him to the circuit judge while the court was in session, was by that court adjudged guilty of contempt of court and sentenced accordingly and an order was further issued against him by the same judge debarring him from the right to practice in that court as county attorney or' as attorney for any client other than the County of Maui. Upon the rendition of this judgment the chairman of the board of supervisors of the County of Maui and one other supervisor expressed the view to the respondent that since the proceedings in question had taken place in the course of the respondent’s employment as county attorney and that since the result of the proceedings was to prevent the respondent from serving as attorney for the County of Maui, that county should bear all expenses incurred in an effort to be made to set aside the judgment and order of the circuit judge and directed or encouraged the respondent to proceed at once to Honolulu to employ counsel to take such steps as might be necessary to secure a reversal of the order of contempt and disbarment, if it may be called that. Following these interviews with the supervisors the respondent proceeded to Honolulu, employed counsel and with the aid and the efforts of such counsel succeeded in having the order and judgment of the circuit judge of Maui set aside on the ground of invalidity. A bill (or bills) for the services of the attorneys of the respondent in this connection was sent to the
Third charge. R. L. 1915, Section 1431, relating to the attorney general, reads as follows: “He shall not receive any fee or reward from or in behalf of any person or prosecutor, for services rendered in any prosecution or business to which it shall be his official duty to attend; nor be concerned as counsel or attorney for either party in any civil action depending upon the same state of facts.” This charge is that the respondent violated this statute by accepting employment and a retainer from one Manuel Botelho to conduct certain proceedings against one Thomas Brown in connection with an alleged fraudulent sale of land by Bro.wn to Botelho.
It is obvious that the provision of R. L. section 1585,
As attorney for Botelho the respondent instituted a suit in equity in which Botelho was complainant and Thomas Brown and five of his brothers and sisters and their respective wives and husbands were respondents. The bill of complaint in that suit read as follows:
“Comes now Manuel Boteilho of Wailuku, County of Maui, Territory of Hawaii, and complains of the Respondents above named, and for his cause of action alleges:
“First: That your Petitioner, Manuel Boteilho, is an aged and ignorant person, unable to read or write the English language, and only able to speak and understand the simplest and most elementary parts of the English language.
“Second: That shortly prior to the 21st day of June, 1916, Respondent Thomas Brown, at Wailuku, in the County of Maui, Territory of Hawaii, approached your Petitioner and informed your Petitioner that he, said Respondent Thomas Brown, together with the other Respondents, Malie Brown, his wife, Joseph Brown and Mary Rose Brown, his wife; Charles Brown and Maria Brown, his wife; James Brown and Sarah Brown, his wife, Mary B. Naone, Eliza Akana and J. H. Akana, her husband, were the owners of certain pieces or parcels of land at Ulupalakua, in the County of Maui, Territory of Hawaii, lying adjacent to each other, and comprising an entire tract of approximately 120 acres; and the said Respondent Thomas Brown solicited and urged your Petitioner to buy the said pieces or parcels of land from the said Respondents at a price of $750.00
“Third: Thaf thereupon your Petitioner asked and requested the said Respondent Thomas Brown to show to your Petitioner the said land which the said Thomas*582 Brown claimed be and said Respondents owned, and that thereupon the said Respondent Thomas Brown took your Petitioner to Ulupalakua and showed to your Petitioner a tract of land comprising approximately 120 acres, and which the said Respondent Thomas Brown claimed and represented to your Petitioner as being the tract of land hereinabove referred to, and which the said Respondent Thomas Brown offered on behalf of himself and the said Respondents to sell to your Pétitioner.
“Fourth: That Respondent Sam Pupuhi, who, your Petitioner is informed and believed, is a professional searcher of titles, came to your Petitioner and claimed and represented to your Petitioner that the said Thomas Brown and other respondents, other than the said Sam Pupuhi, were the owners of the said tract of land at Ulupalakua which the said Respondent Thomas Brown had showed to your Petitioner as being the property which he, the said Respondent Thomas Brown, had urged your said Petitioner to buy as hereinabove set forth.
“Fifth: That your Petitioner, believing the statements of the said Respondent Thomas Brown and the said Respondent Sam Pupuhi as to the ownership of the said property and as to identity of the property so claimed to be owned by the said Respondents, other than the said Sam Pupuhi, thereupon agreed with the said Respondent Thomas Brown to purchase from the said Respondents, other than the said- Sam Pupuhi, the said property so claimed to be owned by the said Respondents, other than the said Sam Pupuhi, and did, on the 21st day of June, 1916, pay to the said Respondent Thomas Brown the sum of $200.00.in cash as part payment of the purchase price thereof.
“Sixth: That the said Respondent Sam Pupuhi, being present at the time and place of the payment of the said sum of $200.00 to the said Respondent Thomas Brown, made and delivered to your Petitioner a receipt for the said $200.00 signing the same in the name of him, the said Respondent Sam Pupuhi, • but your Petitioner, as a matter of fact, -paid the said sum of $200.00 to the said Respondent Thomas Brown on account of said purchase price and agreed to and with the said Respondent Thomas*583 Brown and the said Respondent Sam Pupuhi to pay to the said Respondent Thomas Brown on the 25th day of July, 1916, the balance of the $750.00 as the purchase price for the said land hereinabove referred to as being offered for sale to your Petitioner by the said Respondents, other than the said Sam Pupuhi. •
“Seventh: That on the 25th day of July, 1916, your Petitioner paid to the said Respondent Thomas Brown the balance of the said agreed purchase price of the said property so offered for sale by the said Respondent Thomas Brown, to-wit, the sum of $550.00; that the Respondent Sam Pupuhi, being present at the time and place of said payment of the sum of $550.00 to the said Respondent Thomas Brown, executed and delivered to your Petitioner a receipt for the said sum of $550.00, balance of said purchase price, signing the same in the name of him, the said Respondent Sam Pupuhi, but your Petitioner paid the said sum of $550.00 to the said Thomas Brown; that at the time of the payment of the said balance of said purchase price as hereinabove set forth, the Respondents, Thomas Brown and Sam Pupuhi, delivered to your Petitioner a deed of the said Respondents Thomas Brown and Malie Brown, his wife, a copy of which deed is hereto attached, marked 'Exhibit 1/ hereby referred to and made a part hereof; also deed from Respondents Joseph Brown and Mary Rose Brown, his wife, a copy of which deed is hereto attached, marked 'Exhibit 2/ hereby referred to and made a part hereof'; also deed from Respondents Charles Brown and Maria Brown, his wife, copy of which deed is hereto attached, marked 'Exhibit 3,’ hereby referred to and made a part hereof; also deed from Respondents James Brown and Sarah Brown, his wife, copy of which deed is hereto attached, marked 'Exhibit 4/ hereby referred to and made a part hereof; also deed from Respondent Mary B. Naone, copy of which deed is hereto attached, marked 'Exhibit 5/ hereby referred to and made a part hereof; also deed from Respondents Mary B. Naone, Eliza Akana and J. H. Akana, her husband, Joseph-Brown and Mary Rose Brown, his wife, Thomas Brown and Malie Brown, his wife, James Brown and Sarah Brown, his wife,*584 Charles Brow and Maria Brown, Ms wife, copy of wMch. deed is hereto attached, marked ‘Exhibit 6/ hereby referred to and made a part hereof.
“Eighth: That your Petitioner, being unable to read or understand the contents of the said deeds herein-above referred to and marked ‘Exhibits 1, 2, 3, 4, 5, and 6,’ and being informed by the said Respondents Thomas Brown and Sam Pupuhi that the said deeds conveyed to your Petitioner the said tract of land herein-above referred to as being offered for sale by the said Respondents and believing that the said deeds conveyed to your Petitioner the property shown to him, your Petitioner, by the said Respondent Thomas Brown, as being the property owned by the said Respondents, other than the said Sam Pupuhi, accepted said deeds and paid the said purchase price as hereinabove set forth to the said Respondent Thomas Brown.
“Ninth: That your Petitioner thereafter undertook to take into his possession the tract of land which he, your said Petitioner,, understood and believed to have been purchased by your said Petitioner from the said Respondents, other than the said Sam Pupuhi, and which the said Respondent Thomas Brown represented to your Petitioner as being the property conveyed to your Petitioner by the said Respondents, other than the said Sam Pupuhi, but learned that the said Respondents had no interest whatsoever in or to any land which they, the said Respondents, other than the said Sam Pupuhi, purported to convey to your Petitioner; and learned that your Petitioner acquired by said conveyances no right, title, interest or claim whatsoever in or to the said land which the said Respondent Thomas Brown represented to your Petitioner as being the property conveyed by the said Respondents, other than the said Sam Pupuhi, to your Petitioner; and your Petitioner further learned that the said property is, and for a great many years past has been, the property of persons other than the said Respondents or any of them.
“Tenth: That upon your Petitioner learning that the said property was not the property of the said Respondents, other than the said Sam Pupuhi, and upon*585 Ms learning that lie, your Petitioner, bad acquired by said conveyances no right, title or interest whatsoever in or to the said property represented to your Petitioner as being the property conveyed to him by the said conveyances, your Petitioner demanded of the said Eespond-ent Thomas Brown that he repay to your Petitioner the amount of $750.00 so paid to him, the said Eespondent Thomas Brown, by your Petitioner, but that the said Thomas Brown has failed, neglected and absolutely refused to repay to your Petitioner the said sum of $750.00 by your Petitioner so paid to the said Eespondent Thomas Brown, or any part thereof.
“Eleventh: And your Petitioner alleges that the said conveyances as hereinabove set forth and the said representation so made by the said Eespondent Thomas Brown as to the ownership of the said property were made in total and absolute mistake as to the ownership of said property; that by reason of said mistake as to the title and ownership of said property, all of which was unknown to your Petitioner, your Petitioner has suffered and sustained great and material financial loss and for which he has no plain, speedy and adequate remedy at law.
“Twelfth: And your Petitioner further alleges that the said representations on the part of the said Eespondents hereinabove named as to the ownership of the property and premises which the said Thomas Brown and Sam Pupuhi represented to be the property of the said Eespondents, other than the said Sam Pupuhi, were totally and absolutely fraudulent and untrue and were made with intent and purpose of obtaining from your Petitioner the amount of the said purchase price of said property; that the said Eespondents Thomas Brown and Sam Pupuhi well knew that the said Eespondents other than the said Sam Pupuhi had no right, title, interest or claim whatsoever in or to the said property claimed and represented by the said Eespondents as being the property of the Eespondents, other than the said Sam Pupuhi, and wel-1 knew that by said conveyances hereinabove referred to no right, title, interest or claim whatsoever in or to the said property was conveyed to or acquired by*586 jour Petitioner, and that thereby your Petitioner was defrauded of the said sum of said purchase price, to-wit, $750.00; that thereby your Petitioner suffered great and material financial loss and damage for which he has no plain, speedy and adequate remedy at law.
“Your Petitioner therefore presents the matters and things herein alleged to this a Court of Equity where such matters and things are cognizable, and prays that the process of this Court may issue; that the said Respondents and each of them be cited to appear and answer the matters and things herein set forth; that a full hearing may be had hereon; that upon said hearing the said Respondents may be required to repay to your Petitioner the sum of $750.00 paid by your Petitioner to the Respondents as hereinabove set forth; that the purported . conveyances hereinabove referred to may be declared cancelled and that this Honorable Court may make suqh order and decree in the premises as will, as near as may be, restore your Petitioner to the financial condition in which he was prior to the occurring of-the matters and things herein set forth; that your Petitioner may have his costs herein expended and may have such other and further relief as may be meet and proper in the premises.
“Dated at Wailuku, Maui, Territory of Hawaii, this 19th day of September, 1917.
his
(Sig.). Manuel Boteilho X
mark”
(Subscribed and swoim to before the respondent, E. R. Bevins, as notary public.)
Upon the facts alleged in this bill of complaint Thomas Brown was guilty of violating R. L. 1915, section 3988, which reads as follows: “Whoever shall designedly, by any false pretense, and with intent to defraud, obtain from another any money, goods, or other thing of value, is guilty of a gross cheat.” Section 3993 provides that “Whoever is convicted of a gross cheat
No case has been called to our attention by counsel of a gross cheat statute elsewhere containing examples, as does ours, nor have we been able to find any. In the following cases, however, under statutes similar to ours in their broadness, false representations concerning title to real estate were regarded as being within the meaning of the statutes, although that was not the particular point under consideration: Miller v. The People, 22 Colo. 530" court="Colo." date_filed="1896-04-15" href="https://app.midpage.ai/document/miller-v-people-6562762?utm_source=webapp" opinion_id="6562762">22 Colo. 530, 532, in which the representations were as to the title to the land proposed to be sold and in which the court said that “any pretense which deceives the person defrauded is sufficient although it would not have deceived a person of ordinary prudence;” State v. Penley, 27 Conn. 587" court="Conn." date_filed="1858-10-15" href="https://app.midpage.ai/document/state-v-penley-6577449?utm_source=webapp" opinion_id="6577449">27 Conn. 587, 590, in which the fact asserted by the prisoner was that he was owner of a farm in a neighboring-town and able to pay for twenty yokes of oxen and in which the court said, “pretending to be the owner of valuable property, in good pecuniary’ credit and condition, knowing the pretense .to be false, and making it with intent to defraud, and by means of it obtaining property with like intent, has often been held a false pretense, punishable under statutes like our own;” Crawford v. State, 117 Ga. 247" court="Ga." date_filed="1903-03-12" href="https://app.midpage.ai/document/crawford-v-state-5572336?utm_source=webapp" opinion_id="5572336">117 Ga. 247, 250, in which the court said that “the sources of information as to- title to land are generally matters of record, and since a prudent man would not ordinarily rely on oral statements in respect thereto, it was at one time doubted whether obtaining money under false pretenses could be a crime, where the fraudulent representation was as to an interest in land” but that
Bearing in mind that, the respondent is not to be condemned for a mere error of judgment as to what the law is, it is to be noted in this connection that this contention, based on the fact that the false pretense related to the title to real estate, is an argument presented by the respondent’s counsel and is not testified to by the respondent as a view held by him at the time that he prepared the bill in equity. On the question of knowledge and intention .and exercise of judgment this point must not be overlooked. The respondent’s explanation on the witness stand of his decision to accept the employment at Botelho’s hands was, not that the representations related to real estate and therefore were not within the statute, but that “a criminal state of facts did not exist” because Thomas Brown and his associates did own some undivided interests in the land which was the subject of
Tbe evidence before us shows, prima facie at least, that tbe offense of gross cheat was committed. Botelbo testified before tbe circuit court in tbe trial of law case No. 632 (brought by him against tbis respondent for recovery of the sum of $100 paid by him to respondent as a retainer and for expenses of suit) in relating tbe circumstances under which Thomas Brown induced him to buy tbe property for $750: “He told me that be bad a piece of land in area about 120 acres and I asked him if it belonged to him and be said No, it was bis and bis brothers’.’ He offered to sell me bis share. I told him, No, it was a far place, I would buy tbe property if all tbe family would go into that and sell it all.’ Then be said be would go and see tbe family and brothers and after eight days would come to me. He said, 'Botelbo will you buy? Dó you want to buy tbe. property?’ I asked him, 'Will all your family sell their shares?’ and be said, 'Yes.’ I said, 'All right, I will buy.’ He said, 'Suppose you buy I will take you over to Ulupalakua and show you tbe place.’ He took me up there, my brother-in-law, Sam Pupuhi, Kama and Brown himself. It is up there, and showed us a big piece of land.”1
Tbe circuit judge, before whom tbe case of Botelho
The respondent himself has testified in the case at bar (Transcript, 418-420) as follows: “I believed at the time that Botelho spoke to me that he thought he had bought the entire hunderd and twenty acres because sometimes he said 120 acres and sometimes 138 acres. The Court: He referred in his talks to you to one whole piece of land which he had said had been pointed out to him? A. That he had had pointed out to him by the Browns. He did. Q. He thought he was buying the whole of it when he paid the $750, didn’t he? A. I think so. Q. In other words, that was his statement to you, his claim to you? A. That is what I gathered from his claim to me. * * Q. I am talking about the $750 in money, not any money paid to you. What was your belief at the time that he came to you with his-claim? Was it that he had understood that he had bought the whole land of the people who signed and conveyed to him, the whole land, or was it something different? A. When he came to me it was his belief that he had bought the whole land * * *. Q. What was the theory upon which that complaint” (meaning the bill in equity) “was drawn? A. This complaint was drawn as Botelho expressed. it; he had paid his money and did not get his land and he wanted his land or he wanted his money.”
It is true that the false representation as described
The respondent, while giving the testimony above quoted on the subject of what he at the time of instituting the equity suit believed to have been the fraud committed, nevertheless also testified in effect that after Botelho had made his statement of the facts to him. he. the respondent, had made a further investigation into the
It is not for this court to now try the merits of the
Bespondent’s counsel calls attention to tbe fact that in paragraph “Eleventh” of tbe bill tbe respondent made an allegation that tbe representations as to ownership of tbe property “were made in total and absolute mistake as to tbe ownership of tbe said property” and that this shows that tbe respondent could not at tbe time bave believed that tbe representations were in fact fraudulent or untrue. Neither in tbe evidence before this court nor in tbe evidence then before tbe respondent is tbe slightest basis to be found for tbe allegation relating to mistake. Tbe respondent in bis testimony seeks to explain tbe inclusion of these allegations of paragraphs “Eleventh” and “Twelfth” upon tbe theory that they were purely “formal” and. were inserted merely to compel tbe Browns either to show that they bad title, in which case Botelbo would be satisfied, or to return tbe $750. Tbe argument does not impress us favorably. Tbe unfounded inclusion of paragraph “Eleventh” cannot lessen tbe clearness and directness of tbe allegations of fact contained in paragraph “Twelfth.” The allegations of paragraph “Twelfth” are not “formal.” If they are made in bills of complaint in equity suits it is because tbe facts justify them. No mere necessity, no mere desire for a favorable judgment, no mere considerations of expediency would bave justified such allegations when they were not believed by tbe attorney preparing tbe bill to be true in fact.
Fourth charge. This is a charge that in violation of bis duty as county attorney of Maui the respondent failed to prosecute one Waiwaiole, who, while acting as deputy sheriff for tbe district of Hana in tbe County of
There is in the testimony of the respondent in the case at bar that which was intended perhaps to be received as a denial of this evidence of Waiwaiole but it is not a direct denial and is unsatisfactory to ns. His testimony is that he advised them to “go to some other lawyer and told them to get the best lawyer they could because I felt that they” (meaning the deputy attorney general) “would stick them if they possibly could.” (Transcript, p. 457.) In this he referred to a conversation had shortly after the finding of an indictment and not to the time of the trial, which was several months later. His attention having been called specifically to the morning of the trial and to the conversation detailed by Waiwaiole in his evidence, the respondent said, “I have no recollection of any conversation with Waiwaiole on the morning the case went to trial. Q. Are yon prepared to state whether yon did or did not have such conversation? A. I don’t believe I had any such conversation at that time. Q. Have you anything else to say noAv?” He answered by testifying to other matters. If the respondent’s standards of ethics are entirely correct he should know that he gave no such advice to Waiwaiole and he should have been able to give the most positive, unqualified ansAvers to the effect that he did not at any
The charge against Waiwaiole was presented to the grand jury by the respondent in a most superficial and incomplete manner—in the manner best calculated to bring from the grand jury a finding of “no bill.” The matter has, as the court phrased it in the case of Mo-anauli, 7 Haw. 261" court="Haw." date_filed="1888-07-01" href="https://app.midpage.ai/document/in-re-moanauli-6482913?utm_source=webapp" opinion_id="6482913">7 Haw. 261, 262, “a bad appearance.” The sheriff, who was the sole witness produced by the respondent, had no knowledge of his own which he could transmit to the grand jury. The witnesses who did possess the requisite knowledge were available at Hana, even though sixty miles away from the place of the session of the grand jury. A continuance could well have been had or at least requested for the presentation of further evidence. If this matter stood alone we could not upon the evidence make a finding that with reference to the presentation of the cause to the grand jury the respondent violated his duty; but the respondent’s conduct, when applied to by Waiwaiole for advice at the time of the trial, as above stated, gives color to his preceding conduct and indicates his motives and clearly shows that the respondent was unfaithful to his clients, the county and the people of Maui, and rendered his assistance, such as it was, to the defendant in a criminal case and not to the prosecution.
Bixtli charge. This contains four subdivisions or specifications. The first one is that the respondent acted on behalf of one. Char les E. Thompson and demanded for him the return of three hides which the sheriff of Maui had seized and held in his possession and that he made this demand with the knowledge that Thompson had been guilty of larceny of cattle. The evidence does not sustain this charge as made. It was clearly to the effect that the respondent did not make any demand upon the sheriff
It is to be noted in the respondent’s behalf that the evidence before us is to the effect that he had not been informed, at the time that he called upon the sheriff with Thompson to inquire about the status of.the hides, that Thompson was to be charged with cattle stealing
The second specification under this charge is that the respondent, as Thompson’s attorney, aided the latter in procuring a license for the transaction of his business as a butcher and in doing so “ordéred” the treasurer of the county to issue a license without the production of a certificate by Thompson that he had paid his taxes in full as required by law and at a time when, as was well known to the respondent, Thompson was in arrears in the payment of his taxes. There is no evidence to the effect that the respondent gave any such order. His own testimony and that of the county treasurer (there is none to the contrary) is that when the nonpayment of taxes was mentioned the treasurer asked the respondent whether it would be all right to issue the license at that time and that the respondent merely answered that he thought that it would he, believing that Thompson would very shortly thereafter pay his taxes. In doing this the county attorney encouraged the treasurer to issue a license in violation of law; hut perhaps this is a comparatively small matter.
On the same day that the inquiry as to the hides was made and that the issuance of the butcher’s license was obtained the respondent on behalf of Thompson wrote to the chairman of the territorial hoard of agriculture and forestry for a permit to Thompson to hunt wild cattle in the Kula forest reserve. (Thompson’s slaughter-house is at Kamaole'in the district of Kula.) These matters of the application for a butcher’s license and for a hunting permit had been pending for some time (months perhaps). The charge is that in these three instances—inquiry as to the hides, application for a butcher’s license and application for a permit to hunt—the respondent was
The fourth specification under the sixth charge is that in the presence of the court and of the grand jurors who were assembled to receive their instructions and to attend to such business as the attorney general of the Territory might personally present to them the respondent made the following speech:
“If the Court please, before the Grand Jury retires I desire to make a statement. As you know, and as probably the members of the Grand Judy know, this town is rife with rumors as to the occasion for the presence of the Attorney General here on Maui. I will say that I have not been consulted or advised in any way, official or unofficial, of the occasion for the presence of the Attorney General of the Territory before this Grand Jury. Your Honor has said to the Grand Jury that the head of the legal department of the Territory is here to present certain matters to this Grand Jury. I most strenuously, as County Attorney of the County of Maui, object to the Attorney General of the Territory appearing before this Grand Jury, either in person or by any person whom he may specially deputize to appear before this Grand Jury. I will call your Honor’s attention to the fact that the laws of the .Territory of Hawaii make the County Attorney the public prosecutor for the County of Maui. My attitude in this is: If the Attorney General has anything to present to this Grand Jury, it should go*602 thru my office and not thru some outsider. I am informed,—as a matter of fact I know—that a member of the Bar of Wailuku, Mr. Enos Vincent, bas represented to officials of the Police Department that he has been specially deputized to work up certain cases here. I will say that even though Mr. Vincent has been specially deputized by the Attorney General that such special depntization gives him no standing before this Grand Jury. A year and a half ago some such situation took place in Wailuku. I sjood all the butts and jokes at that time, and have been reelected as County Attorney of the County of Maui, and am here to conduct the affairs of the County according to law. I will not brook the interference of Mr. Irwin as Attorney General, or Mr. Enos Vincent as his special deputy, unless he comes before the Bar as Special County Attorney; and I think Mr. Irwin has acted wholly and absolutely outsidé the ethics of his profession in coming into the County of Maui and carrying-on investigations without the help of my office. I further object to the appointment of Miss Dunn as a Special Court Stenographer to appear before the Grand Jury. The rule of Court, as I understand it, prescribes that an Official reporter of this Court shall go before the. Grand Jury; and if anyone goes before the Grand Jury to take down the proceedings it should be Mr. McMahon, the Official Reporter of this Court.”
The attorney general was present in person at that session of the court to'present to the grand jury a charge against Thompson and others of cattle stealing and this was known to the respondent at the time that he made the speech above quoted. In words the speech stated a claim by the respondent that the attorney general of the Territory of Hawaii had not the power or the right to present criminal matters to the grand jury without the authority and the permission of the county attorney. It is argued by counsel for the respondent in the case at bar that such is the law. The contention, in our opinion, is utterly unfounded. Our ¡statutes expressly provide that
If the respondent’s language under consideration was merely the assertion of his views, made in good faith, why did he not present that claim to the attorney general or to the court or to both at a time and place when the grand jurors were not present? Something has been said in argument as to the possibility of his ignorance of the law and of correct procedure excusing some of his acts or omissions; but we cannot properly attribute to him so great .a degree of lack of intelligence and understanding of the law and procedure and right action as to lead us to believe that in making the address in question he failed to realize that it might well have a tendéncy to prejudice the jury against bringing an indictment against Thompson. On the contrary, we cannot escape the conclusion, and it is our belief, that the language used was used for the definite purpose of prejudicing the grand jury and of leading the grand jurors to refuse to find a true bill against Thompson.
Bespondent’s counsel contends that these are matters which concerned the conduct of the respondent as county attorney and not as a member of the bar and that the proper remedy is by proceedings for impeachment and not by proceedings for disbarment. The law has been
“Tbe court may suspend or disbar an attorney for*607 misconduct in connection with.Ms duties as a prosecuting officer, and this is true although he is also subject to impeachment by the state. Thus, a prosecuting attorney may be disbarred for gross infidelity to his trust. So the refusal or neglect of a district attorney to prosecute persons charged with the commission of a crime will justify his disbarment. And where a prosecuting officer receives sums of money as a consideration for refraining from enforcing the penal laws of the State he will be disbarred.” 2 Thornton, Attorneys at Law, Sec. 847.
“We cannot differentiate between his character of an attorney and that of such county official, as some argument advanced indicates should be done. Such public relation only aggravates the offense charged against him. The mere fact that he is liable to indictment for malfeasance in office and to removal therefrom does in no way affect the power and duty of the court to strike his name from the roll of attorneys for the same misconduct for which he could be also both indicted and removed. It is all the more reason why his name should be stricken from the roll that the misconduct which unfits him is a breach of fidelity to the public' whose welfare he is sworn to maintain. Is not such infidelity even worse than breach of trust to a single client? No one will deny the power and duty of a court to strike from the roll the name of one who fails to maintain fidelity to the personal trust of a single client’s interest. How much more important is the duty to exercise this power when the infidelity or misconduct relates to an attorney charged, not only by the honor and oath of an attorney at the bar, but also by the dignity and oath of a public official, in an office calling for the exercise of highest qualities as an attorney!” State v. Hays, 61 S. E. (W. Va.) 355, 356.
“The respondent and his counsel claimed before the commissioners and now contend that because the misconduct found relates to the Respondent’s duties as State’s Attorney for the county of Rutland, for which he is answerable to the voters of the county, and to the State, and for which he might be impeached, this court has no jurisdiction over him in regard to the same.*608 While acting in the county court in the prosecution of cases in which the State was a party, and in all his relations to parties, counsel and court, in such prosecutions, he was also acting in his official capacity as an attorney of this court, and under the obligations assumed by him when he became such attorney. Notwithstanding he might he liable to impeachment, or might be rejected by the voters, if a candidate for reelection, his conduct when acting in his office of attorney, and sometimes when acting in a private or other capacity, was open to investigation by this court, and if found to be such that the court, to protect itself and the public,- and to keep the administration of justice pure, ought to withdraw the protection and credit under the law which it accorded him by admitting him to the office of an attorney at law and solicitor in chancery, it is, beyond question, the right and duty of this court to deal with him as justice demands. It may suspend or disba.r him.” In re Joseph C. Jones, 70 Vt. 71" court="Vt." date_filed="1897-05-15" href="https://app.midpage.ai/document/in-re-jones-6584819?utm_source=webapp" opinion_id="6584819">70 Vt. 71, 86.
“The fact that some of the acts charged against him were acts of official malfeasance committed in his capacity as county attorney can make no difference. He performed them as an attorney at law—as an official of the court as well as an officer of the county. While we have previously held that a county attorney need not be a duly admitted and licensed member of the bar * * ⅞ yet if he be such he must, in representing the interests of his g«cm-corporate client, be governed by those rules of professional conduct under which justice must needs be administered to public as well as to private litigants.” In re Norris, 60 Kan. 649" court="Kan." date_filed="1899-06-10" href="https://app.midpage.ai/document/in-re-norris-7891112?utm_source=webapp" opinion_id="7891112">60 Kans. 649, 659.
“He held the office of state’s attorney by virtue of his having a license from this court to practice law and any deviation from the line of proper deportment in the office of state’s attorney is equally a deviation from the line of proper deportment as an attorney at law. It cannot be successfully maintained that criminal conduct on his part as state’s attorney cannot be used as evidence to take from him the authority under which he practices law, and under which he exercises the functions of state’s attorney, whereas a person may commit some offense not connected with his duties as an attorney at law, when*609 sucb offenses do not unfit him for the practice of his profession and render him unworthy of the confidence of clients, and no ground exists for disbarring him. In such cases the man and the attoimey at law are deemed separate, and an act that may reflect seriously upon the character of the man will not be grounds for disbarment or suspension. But it is not true that corrupt conduct on the part of a state’s attorney in his professional capacity will not constitute cause for disbarment or suspension as an attorney and counsellor at law.” In re Voss, 11 N. Dak. 540, 552.
Our findings under the third charge, relating to Botelho v. Brown, under the fourth charge, relating to Waiwaiole, and under the sixth charge, relating to the speech in the presence of the grand jury, are in effect that the respondent in each of these instances was guilty of infidelity to his client, the County of Maui. It was his duty in each of the cases mentioned to protect to the best of his ability the interests of his standing client, the county, and to do nothing in conflict with that duty. In attempting to prejudice the grand jury so as to cause it to fail to find a true bill against Thompson he violated his sworn duty. In advising Waiwaiole not to carry out his purpose of pleading guilty and of telling the whole truth to the court as he knew it, and in further advising him to fight the case because the attorney general’s department would use every effort to “stick him,” he violated his sworn duty. These were serious derelictions of duty, not to be lightly treated. The third instance likewise involved a violation of his statutory duty although possibly not so serious as in the other two cases. As already stated, it is not the purpose of the judgment in a proceeding for disbarment, where the respondent is found guilty, to punish him. The sole purpose is to protect those with whom he may come in contact as attorney and who may become his clients. It is difficult sometimes
The judgment of the court is that the respondent be and he is hereby suspended from the practice of the law for the period of three months from this date and that his license to practice law be suspended for the said period of time.
Dissenting Opinion
DISSENTING OPINION OF
I am unable, from the evidence adduced in this case, to reach the conclusion arrived at by the majority of the court.
Certain portions of the opinion it will not be necessary to consider as they have not been adverse to the respondent.
Third charge. This charge in the information is in substance as follows: “Re Manuel Boteilho. Your informant is informed and believes and upon such information and belief alleges and avers that Manuel Boteilho is a Portuguese man of advanced years, residing at Wailu-ku, Island of Maui, who has acquired considerable savings from his labors, but who is unable to read or write the English, Portuguese or any language, and is of an ignorant but trustful nature;” that one Thomas Brown offered to sell to him (the said Botelho) for the sum of $750 a piece of land containing approximately 120
This charge is absolutely unsupported by a scintilla of evidence. The land in question is not, nor has it ever been at any time, the property of the Raymond ranch nor was there an iota of evidence introduced to support this allegation. The evidence adduced established beyond the shadow of a doubt that the land pointed out to Bo-telho by Brown was the property of Brown and his brothers and sisters, and while it is true that the deed did not convey the entire interest of all of the children (the brothers and sisters of Brown), three of them not having-signed the instrument, there is no question that the record and the testimony in this case show that the deed was a valid conveyance of the interest of Brown and his brothers and sisters, with the exception of the three before-mentioned, in and to the land pointed out to Botelho by Brown in the first instance; that even upon the construction placed upon the statute in regard to gross cheat by this court, with which I am not in accord, Brown was
This, in my judgment, being the only conclusion deducible from the evidence I fail to see how the respondent could have been guilty of a breach of section 1431, R. L. 1915, prohibiting the attorney general from receiving “any fee or reward from or in behalf of any person or prosecutor, for services rendered in any prosecution or business to which it shall be his official duty to attend; nor be concerned as counsel or attorney for either party to any civil action depending upon the same state of facts.”
Fourth charge. This is a charge that in violation of his duty as county attorney of Maui the respondent failed to prosecute one Waiwaiole, who, while acting as deputy sheriff for the district of Hama, in the County of Maui, with other officers made a raid upon certain Japanese and arrested them upon a charge of violating the laws relating to gambling. In the raid he (the said Waiwai-ole) and his associates took from the Japanese a sum of money and converted the same to their own use. It appears from the testimony that this matter was presented by Bevins to the grand jury who acted upon that presentation and recommended in its report that “pending
Sixth charge. The fourth specification under this charge in the information is that the respondent, in the presence of the court and of the grand jury, which was assembled to receive instructions and to attend to such business as the attorney general of the Territory might personally present to it (the matter to be presented being certain charges of cattle stealing against one Thompson and others), made a speech which the attorney general claims was intended to influence the grand jury and to induce it to find “no bill” against the said Thompson and his associates and the majority opinion is “that the language used was used for the definite purpose of preju
I am further of the opinion that the charges contained in the information have not been supported by evidence and therefore the respondent should be exonerated.