158 P. 778 | Utah | 1916
Lead Opinion
There were a number of charges preferred, all of which were set out in the complaint with much particularity and detail. We do not deem it necessary to repeat them here, nor even to state them in substance. The evidence produced in support of them and in favor of the defendant is also quite voluminous, covering 434 pages of typewritten legal cap. We have read the evidence, and, from a consideration of the whole thereof, we feel disposed to adopt and follow the findings of the referee. That conclusion necessarily results in overruling the exceptions of counsel for both sides, as well as in denying the request of counsel for the prosecution to recast the findings so as to make them read that the charges preferred against the defendant are all sustained, and the further request of counsel for the defendant to restate those found that are against the defendant so as to make them read in his favor, or that none of the charges are sustained.
Upon the one charge referred to, the referee in substance found that the defendant was regularly employed by one Alfred Sorenson, who then stood charged with the crime of murder in the first degree by shooting to death one Gillis, to
Upon the foregoing findings the referee also made conclusions of law, in Avhieh.he found that the defendant in the particulars aforesaid “acted wrongfully, stealthily, surreptitiously, and unlawfully and in a manner not in accordance with the dignity of his profession, and is guilty of unprofessional conduct in that regard.” The finding’s are assailed as not sustained by the evidence, and the conclusions are objected to as not supported by the findings. Without stating the evidence here, it must suffice to say, for the present at least, that we are clearly of the opinion that the referee, in view of the_ whole evidence, could not well have found the facts differently, nor have arrived at a different conclusion with respect to them. As before suggested, we have the right to look to the whole record to determine the quality of defendant’s conduct, and the responsibility of determining what the result shall be upon the whole record likewise rests upon
o In view, therefore, that these proceedings are not intended as punishment in the sense that a sentence or judgment in a criminal proceeding is deemed to be so, but are intended more in the nature of an admonition to the accused and to protect
Concurrence Opinion
(concurring).
I too think the findings of the referee should be adopted. They exonerate the respondent on all of the charges except one. As to that the referee’s finding is:
*169 ‘ ‘ That at about eleven or eleven thirty o ’clock on the night of the 4th day of September, 1912, Mr. Leichter, then a member of the police force of Salt Lake City, Utah, met Mr. Hanson at or near the southeast corner of Main and First South streets, Salt Lake City,’ Utah, and after engaging Mr. Hanson in conversation, asked him if he did not want to see those clothes in the Sorenson Case, to which Mr. Hanson replied that he did, whereupon Mr. Leichter invited Hanson to come
*170 “The referee further finds that the allegations in said petition, to the effect that on or prior to said 4th day of September, 1912, said Hanson offered a bribe, or bribes, to said Zeese or Leichter for the purpose of inducing them, or either of them, to assist him in obtaining the custody of said clothing is not established by the evidence.”
Upon these findings the referee stated,this conclusion:
‘ ‘ That in going to said police station at the midnight hour, down an alley and to the back entrance thereof, taking said bundle of clothes out of said station, through the back .door and down the alley leading therefrom, he acted wrongfully, stealthily, surreptitiously, and unlawfully, and in a manner not in accordance with the dignity of his profession, and is guilty of unprofessional conduct in that regard.”
There is no doubt that a trap was set for the respondent into which he voluntarily stepped. After he was denied an inspection of the clothes at the station, he was invited and induced by the detective to clandestinely go there at an unseemly hour, receive the clothes, and while he, groping his way back through the alley, with them in his possession, was, of course unbeknown to him, to be arrested by officers stationed there for the purpose, as though he had' purloined them. Neither the finding made nor the evidence supports the claim that he had stolen them. The referee found that he had not bribed, nor offered to bribe, the detective to obtain possession of them. Still, the' manner in which' the respondent entered the station and departed therefrom with the clothes would justify an inference that he intended to take them and withhold them from the prosecution as future evidence. On the other hand, evidence was given to show that he had no such intent. I think the doubt in such respect should be resolved in his favor, and that his conduct in receiving and taking the clothes should be regarded as not criminal. Still, the clandestine manner in which he did receive and take them, and in which he attempted to depart with them, even with the intent as claimed by him, shows such misbehavior and delin