27 S.D. 386 | S.D. | 1911
On the 28th of March, 19x1, J. M. Prostrollo, filed in this court an accusation against the said Royal C. Johnson, charging- him with misconduct as an attorney of this court, to which the accused filed an answer on April 4, 1911. In view of the important position held by the accused as Attorney General of this state, and the necessity for an early determination of the proceedings, this court decided to hear the case in order to avoid the delay incident to a reference of the case to a referee, and appointed the 21st day of April, A. D. 1911, as the time for such hearing.
The accusation, omitting the title, is as follows: “J- M. Prostrollo, being duly sworn, on oath says: That at all the times hereinafter mentioned Royal C. Johnson was the duly elected, acting, and qualified states attorney in and for Hyde county, S. D., and a member of the bar of the Supreme Court of South Dakota. That said Royal C. Johnson is a member of the law firm of O’Brien & Johnson at Highmore, S. D. That on or about June 22, 1909, said Royal C. Johnson instituted proceedings in justice' court against Frank Brandell, Fred Cline, and George McCarthy, charging them with the crime of grand larceny committed in Hyde county, S- D., by the stealing of certain horses. 'That said criminal proceedings were prosecuted to final judgment of conviction in the circuit court of Hyde’ county at the October, 1909, term thereof; said criminal proceedings being now before the Supreme Court on appeal. That on or about the 22d day of June, 1909, said Royal C. Johnson, as a member of said firm of O’Brien & Johnson, commenced civil actions against said Frank Brandell, Fred Cline, George McCarthy, and one Charley Bowman to recover damages for the unlawful conversion of the said horses. That the
The answer of the accused admits that he was a duly elected, qualified, and acting state’s attorney in and for Hyde county, from about January 1, 1908, to January 1, 1911, a member of the Bar of the Supreme Court, and a member of the law firm of O’Brien & Johnson, at Highmore; admits that on or about June 14, 1909, he instituted proceedings against Frank Brandell, Fred Cline, and George McCarthy, charging them with the crime of grand larceny, committed in Hyde county, in the stealing of certain horses; that said proceedings were prosecuted to final judgment and concluded in the circuit court of said county at the October, 1909, term.
And the accused alleges: “That on or about the 22d day of June, 1909, the firm of O’Brien & Johnson commenced civil actions against Frank Brandell, Fred Cline, George McCarthy, and one Charles Bowman to recover damages for the unlawful conversion of said horses. That the alleged larceny and the alleged conversion arose out of the same transaction,. but said civil actions did not depend on the same state of facts as said criminal action depended upon at the time said suits were instituted. That said O’Brien & Johnson remained as attorneys of record in said civil actions until April 23, 1910, when they filed written' withdrawals therefrom. That at the time said civil actions were instituted it appeared to the said O’Brien & Johnson and Royal C. Johnson from the evidence disclosed at that time that the civil and criminal actions above mentioned did not depend upon the same state of facts. That afterwards in preparing for the trial of such civil actions 'O’Brien & Johnson and Royal C. Johnson decided that some of the testimony used in the criminal actions might be used in the civil actions. That thereupon, at the February, 1910, term of court in Hyde
The accused further answered as to the second charge made against him by the said Prostrollo, in substance, as follows: That on or about July 10, 1910, upon complaint of Henry Ringer, Royal C. Johnson, as state’s attorney, cause a subpoena to be served on J. M. Prostrollo in an action wherein state of South Dakota was the plaintiff and John Doe was defendant, in which Prostrollo was required to attend before W. B. Hamlin, a justice of the peace in -Hyde county, that said Prostrollo was confined to an inquiry concerning a certain transaction between said Prostrollo and one Ringer; that, after giving such testimony, no other proceedings were had in said cause of the State v. John Doe and the same was discontinued and dropped; that thereafter, and about the month of August, 1910, a suit was begun in the circuit court of Hyde county against said Prostrollo by Ringer; that said suit was instituted in behalf of plaintiff by one T. Forest Auldridge, and the trial of such action was conducted on behalf of the plaintiff by said Auldridge and A. B. Fairbank, of Huron; that said O’Brien & Johnson and T. Forest Auldridge officed together at that time, and Auldridge was in the employ of said firm at a salary of $25 per month to assist them in such office work as the firm should desire him to perform, with the understanding that any legal cases which came to him directly, or which O’Brien & Johnson refused, could be taken and performed by him, the said Aul■dridge, if he so desired; and that neither the accused nor O’Brien at any time had any connection with or interest in the said civil
The accused further answering, denies “that, to his best knowledge, information, and belief, at the time of the civil and criminal actions were instituted by'W. D. Thompson and James Buchan against the defendants Frank Branded, Fred Cline, George McCarthy, and Charles Bowman, such civil and criminal actions depended upon the same state of facts. He denies that T. Forest Auldridgc in bringing the civil action of Ringer v. Prostrollo was acting under the employ of O’Brien & Johnson or Royal C. Johnson or for them in any way. He denies that the criminal proceeding in justice court in the case of State v. John Doe was a mere pretense or had for the sole purpose of putting Prostrollo on the witness stand, and securing from Prostrollo an admission that said land was government land, and that Prostrollo did not have a relinquishment for same for the purpose of instituting a civil action against said Prostrollo; but avers that the same was had for the sole purpose of discovering whether or not a crime had been committed by the said Prostrollo, and without thought of a civil action. He denies that at the request of himself W. B. Hamlin, the justice of the peace before whom such examination was had,' made no-record of said case against said John Doe,' but such record was-made and shown on the docket of the said justice. He denies that either O'Brien & Johnson or Royal C. Johnson have been guilty of any unprofessional conduct in the cases wherein charges have been preferred against said Johnson by said Prostrollo, or in any other matter.”
The evidence in the case is very voluminous, consisting largely of' court record, but, as there was a very slight conflict in the same as to the proceedings, it will not be necessary to set it out in this opinion.
[i] It will be observed that the accused admits the criminal proceedings in the circuit court resulting up the conviction of
It further appears that the accused and his partner, OBrien, prior to the interview of the accused with Judge Boucher, examined the provisions of section 938, Pol. Code, which reads as follows: “Said state’s attorney shall not receive any fee or reward from or on behalf of any prosecutor or other individual for services or in and prosecution or business to which it shall be his official duty to attend, nor be concerned as attorney or counselor for either party other than for the state or county in any civil action depending on some state of facts upon which any criminal prosecution commenced but undetermined, shall depend * * *” —and arrived at the conclusion that they had better withdraw from said actions for the reason that some of the facts necessary to be proven in the civil actions might be the same, or substantially the same, as the facts involved in the criminal action. The accused testified on' the hearing that at the time he and his partner commenced the civil actions they were of’ the opinion that the only question involved in the civil actions would be as to the amount
Assuming, therefore, that the accused honestly believed that the only question involved in the civil suit was as to the amount of damages sustained by the plaintiffs in the civil actions, and that evidence tending to prove the larceny would not be necessary, it is quite clear that the accused, in his connection with the civil actions, acted in good faith, and had no intention of violating the provisions of the section above quoted. We are inclined to take the view, therefore, that the institution of the civil actions by the accused and his partner was the result of an honest misconception as to the facts -that might be necessary to be proven on the trial of the civil actions under the circumstances connected with the case, as then understood by them, and that no intentional wronger violation of the statute was intended.
[2] We proceed now to consider the second charge of misconduct alleged against the accused, viz., the filing of the criminal complaint in the case of State v. John Doc, in which Prostrollo was subpoenaed as a witness for the purpose alleged in the accusation of procuring testimony from him to be used in a civil action. Section 1 of chapter 200 of the Session Laws of 1907 provides: “Whenever any complaint verified upon information and belief is laid before any justice of the peace, police justice or municipal judge, that a criminal offense has been committed against any law of this state and asking for an investigation of the same, such justice of the peace, .police justice or municipal judge shall issue his subpoena requiring any and all persons to attend before him at the time and place mentioned in such subpoena and submit to an examination and give testimony concerning any violation of law about which he may 'be questioned. * * *” It will be observed that it is alleged, and the record sustains the allegation, that the complaint was issued upon a charge made against John Doe. It appears from the evidence that Prostrollo was the only witness examined, and that upon the close of his examination apparently all further proceedings in the case were dropped, and soon thereafter
In regard to -this transaction, the accused testified substantially as follows: “Some time in June or July, 1910, one Henry Ringer came to my office and complained to me, as state’s attorney, that he thought a crime had been committed by J. M. Prostrollo, and that Prostrollo had procured money from Ringer under false pretenses, and asked me to file a criminal complaint in justice court against him. I told him it was my custom in every criminal case, since the passage of chapter 200 of the Raws of 1907, to conduct an investigation under that statute, and I have conducted such investigation, I think without exception, in every case that has been brought before me — every criminal case, that those cases were entitled, ‘The State of South Dakota v. John Doe,’ that no defendant might be apprised of the nature of any charge against him; that as Mh Ringer resided in De Grey, about 35 or 40 miles from High-more, it was necessary for me to make the affidavit for this investigation myself, as I have done in practically every case that has been presented; that I made such affidavit at the request of Ringer, who had come to my office with Henry Volz, who was a cousin of his, and had a subpoena issued, supbcenaing Prostrollo to appear before the justice of the peace, W. B. Hamlin, before whom the affidavit was made; that in' all investigations of this kind the justice of the peace has had his office in the state’s attorney’s office. When Mr. Prostrollo was brought before me, I took the testimony by questions and answers, and Mr. O’Brien was present, and Miss Downer was the stenographer; that after this testimony was taken, Henry Volz came to my office, I think some time in July, and in
In exonerating the accused of the charges in this proceeding, we should not be understood as implying that a state’s attorney may with propriety, under any circumstances, be connected at the same time with a civil and criminal action, involving the same transaction. Nor should we be understood as expressing any opinion regarding the proper interpretation of chapter 200, Paws 1907. The language of that act is broad and comprehensive. Independently of constitutional limitations, it would seem to justify the practice pursued by the accused and which counsel assert is the practice which has been generally followed since this statute was enacted. Manifestly, a proper interpretation of such a statute would require consideration of sacred constitutional rights which should not be defined in this proceeding. However interpreted, this act materially changes long established methods of procedure in this jurisdiction.
[3] ’Certain it was not intended to be employed for the purpose of procuring evidence for use in civil causes. When invoked for a proper purpose, the practice under it must be governed by fundamental principles. Clearly, the interpretation given it by the accused, and the practice said to be generally followed, would in a proper case give rise to serious and doubtful questions of constitutional law — questions which should receive the thoughtful attention of state’s attorneys and all members of the bar. And, while we find that Mr. Auldridge’s employment in the civil action against Prostrollo was free from any improper motive, it should not be understood that we concede the propriety of such employment under the circumstances disclosed by the evidence.
Therefore it is the conclusion of -the court that the charges against the accused have not been sustained, and that this proceeding should be dismissed upon the merits.