10 S.D. 322 | S.D. | 1897
This proceeding was commenced in this court for the purpose of having the name of the accused stricken from the roll of attorneys and counselors of this court, and his license revoked, or to have him suspended from practice for such time as shall seem j ust. A verified accusation was presented to the court by A. B. Kittredge, Esq., and C. G. Hartley, Esq., attorneys and counsellors at law of this court, wherein it is alleged that the accused, who is an attorney and counselor at law of this court, was on October 30, 1896, duly indicited in the United States district court within and for the district of South Dakota, charged with the crime of receiving property of the United States with intent to convert the same to his own use and gain, knowing the same to have been stolen, to which charge he pleaded not guilty; that on June 12, 1897, he was duly .convicted by a verdict of a jury of the crime charged; that on June 25, 1897, he was duly sentenced to be imprisoned at hard labor in the penitentiary at Sioux Falls, in this state, for the period of two years; that such conviction and sentence are still in force and effect; and that the crime for which he was convicted is a felony, and one involving moral turpitude. To such accusation was attached a duly-authenti
So far as it is applicable to this proceeding, Comp. Laws, § 473, reads thus: “The following are sufficient causes for revocation or suspension: (1) When he [an attorney] has been convicted of a felony, or of a misdemeanor, involving moral turpitude, in either of which cases, the record of conviction is conclusive evidence.” It is contended that this section was repealed by Chapter 21, Laws 1893. Comp. Laws, §§ 462-480, inclusive, were formerly Chapter 18 of the Political Code, the subject of such chapter being “Attorneys and Counselors at Law.” They provide what persons may practice, how they shall be admitted, and the oath to be taken; define the duties and powers of attorneys; create and regulate an attorneys lien; prohibit any attorney from being a surety in any suit instituted in this state; provide for suspending and revoking his license; designate certain causes as sufficient for so doing; and describe the procedure in such cases. The act of 1893 provides who shall practice, and how persons shall be admitted; prescribes the same oath, with certain verbal modifications required by the change from a territorial condition to that of statehood; provides for suspension and disbarment, and the procedure, “when an affidavit charging an attorney with embezzlement, or other professional misconduct, is filed in the circuit or supreme court.” It expressly repeals all acts and parts of acts in conflict with itself. Evidently it was not intended that this act should replace all of Chapter 18 of the Political Code. The later law cannot be regarded as a revision of the entire subject. It would be unreasonable to infer that the legislature would repeal the sections defining the duties, powers and liens of lawyers, without enacting something to take their place. As indicated by its language, the legislature clearly intended to re
The objections to the introduction of the record of the federal court were properljr overruled. The material allegations of the accusation are, in effect, admitted by the answer; the transcript is properly authenticated, it contains all the proceedings necessary to sustain the accusation; the writ of error and supersedeas are matters of defense that the accused should have been prepared to prove; and this is not a criminal action. Concerning the character of such proceedings, the authorities are conflicting. The supreme court of the United States, in a case wherein the subject is exhaustively discussed, and numerous authorities are cited, reaches what we regard as the correct conclusion. The following language of that learned court is quoted with approval: “The proceeding is, in its nature, civil, and collateral to any criminal prosecution by indictment. The proceeding is not for the purpose of punishment, but for the purpose of preserving the courts of justice
Finally, it is contended that by reason of the writ of error and supersedeas the judgment of the federal court is ineffectual for any purpose, and will not warrant disbarment or suspension until it shall have'been affirmed. In discussing the proposition, it will be assumed that the supreme court of the United States acquired jurisdiction of the criminal action, and that such action is now pending therein. Regarding civil actions, it is held in numerous cases that the perfecting of an appeal suspends the operation of a judgment as an estoppel, and renders it no longer admissible as evidence in any controversy between the parties. There are other equally respectable authorities which support
Rehearing denied. Opinion, 73 N. W. 907.