*1 426 " it not qualifi- . would have . . While as their
right jurors to to examine inquiry, an improper make such been to interest, affect that would or bias cations, the sound this kind are within case,” under matters of right, “the the trial of the judge, which was court, of the trial said discretion examine of the to direction at . F. 2d . .”472 not abused here. any might tend to jurors to matter right does not 607. This affect their verdict.” dis- any way diminish the trial court’s the trial court did We hold that Magro, Rose v. cretion in such matters. in this abuse his discretion case. 120, 296 The (1929).
220 124 So. Ala. is within scope permissible examination of the of Criminal The judge. Aaron v. of the trial discretion Appeals is cause is reversed State, 337, 309 (1962); Ala. 139 So.2d 273 manded. 67, State, Ala. 277 So.2d Fletcher v. 291 Reversed and remanded. (1973). 882 HARWOOD, MERRILL, COLEMAN, appears judge permitted trial It McCALL, lengthy a examina JJ., defendant conduct BLOODWORTH con- empanelment prior tion of the venire cur. forty jury, allowing of defendant’s
fifty-seven interrogatories. HEFLIN, J., and C. FAULKNER JONES, JJ., dissent. State,
In 109 19 v. Ala. So. Williams judge questioned (1895), 530 trial
spective found that one them jurors and jury grand
had been member rape. indictment for
which returned the judge’s the trial ac-
This affirmed challenge upholding state’s
tion State, Ala.App.
cause. 38 But Noah v. (1956), 89 231 the Court of 296 So.2d upheld judge’s trial Criminal inquire counsel to refusal to allow defense In McDONALD. the Matter of Thomas D. any jurors had ever prospective whether Ex BAR. ALABAMA STATE they had voted jury served on which on 778. SC for conviction. Supreme Court of Alabama. States, In Bellard v. 356 F. 2d United June 1974. (5th 1966), the court’s refusal to Cir. jurors they ask on voir dire whether had had grand jury pre-
served on federal petit on in a federal jury
vious service an
or state court was not abuse discre-
tion. perjury
Defendant was convicted of be- jury Rug- grand
fore a v. United States 1973). 2d He
giero, (2nd 472 F. Cir. refusing
contended trial court erred jury dire “whether
to ask at the voir jury grand on a persons served have jury
or another on another occasion.” noted:
Second Circuit *2 Morrow, Jr., Montgomery,
William H. petitioner.
for
Watts, Salmon, Roberts, Manning & Huntsville,
Noojin, respondent.
JONES, Justice. pro-
This is a “show cause” disbarment ceeding Supreme instituted Grievance Committee attorney in a ceedings against a licensed against Thomas D. McDonald, subsequent respondent. “show cause” disbarment ceeding. of an or- prayer is for the issuance and hold that respon- reject his contention directing der this We where, here, cause, exists, is not void on why if he dent' to show *3 face, may made his name its no collateral attack be should not be disbarred and Court, pur- validity judgment “show on the in a stricken from the rolls of this A, 37, hold proceeding. suant Rule of cause” disbarment To to Amended Section only pre-empt not the Governing the Rules Conduct of Attor- otherwise would the Alabama, neys pursuant in to the in- Court of Criminal of its exclusive jurisdiction, re- admis- criminal but it also would powers herent of this Court over this on the attorneys quire by sions and disbarments of at law a determination Court 37, per- in Rule in its merits of the case in the a full this State. Amended absence of parts, provides: proceedings tinent record of the below. “Any attorney disbarred and must be McDonald next contends that he practice the of law for excluded from pending appeal should not be disbarred of following any one of the causes: conviction, e., his i. the word “conviction” in 37(b)
as used Rule means “final convic precise tion.” He concedes that this issue being under “(b) Upon his convicted a by was decided this his Court adverse to plea guilty, plea guilty, plea a of not a of contention in Ex Alabama Bar State any plea by nolo or of contendere other 191, (Flowers), 285 Ala.
any of record of this State or of (1970). any or of other United States State promulgation In its of the Code of Pro- any by
of the law of the fo- crime which Responsibility of fessional trying felony, rum is a in either the case 6, 1974, May State Bar become (adopted of record his which cases the of convic- 1974, 1, which will su- effective October copy tion or a certified and au- thereof percede Conduct), the Amended of by Code thenticated in the manner authorized this in Court reconsidered the rule Flow- is law conclusive evidence.” ers, opposing and its reconciliation of Bar only The State contends that views set majority forth and dissent- question is to be resolved or not whether ing opinions expressed therein are Sec- respondent felony has been convicted of a tion A—SANCTIONS: by a court of Petitioner offers a record. attorney 7, 1974, “An must be disbarred or sus- copy of Judgment a March pended : by Commitment entered the Circuit Court of County against Madison of Alabama re-
spondent, 64, of Title violation § (ac-
Code of Alabama as amended cepting by judicial officer), a bribe a his conviction has become “(b) When is presently which of conviction plea guilty, final under a of of plea pending appeal in the Alabama Court of contendere, guilty, plea of nolo or Appeals. Criminal any plea, any other record of court of
this or of the or United States by argument, any any McDonald’s first which other state for crime which validity judgment of trying attacks the the law of the forum case is conviction, question felony (other raises the whether than or a manslaughter) attack involving turpitude, this can consider a collateral misdemeanor moral pro- his on the criminal of which cases the record of cannot, through the above, since we certified copy thereof conviction or full accomplish the process, decisional manner autho- in the and authenticated sanctions, defer we “new” evidence; objective of the rized conclusive law arising sub- cases this effectuation to those however, attorney vided, an has when effective sequent 1974—the October provided, and as herein been convicted Accordingly we final, Code. date of the “new” has not become such conviction decline to overrule Flowers. may file a Alabama, Supreme Court with the cause, and showing good
make a Moreover, asserts McDonald quest attorney be disbarred that such Ses judge of the General he will not sit as suspended immediately, irrespective of County nor he Madison will sions Court of appeal and have attorney’s right to such pending engage practice of law reviewed, his conviction Su- po McDonald’s appeal. The substance of *4 it such preme may take action of of reversal sition is “that the event [in proper.” deems wish he does not his criminal conviction] right of reinstate prejudice to his future promulgating the the Had .Court ment, it for him to make more difficult or posi- Code taken either of the two “new” voluntarily by sur right, to exercise such to when espoused tions in Flowers —as rendering his to the Alabama license disbar- purposes for of conviction occurs in the context improbable is that Bar.” It for fol- strong ment —a case could be made any irreparable harm can applicable here This provisions. lowing the “new” Code that his rein is axiomatic result since it however, merely, argument is academic retro automatic and statement will be both (Rule of 37(b)) since Code Conduct upon reversal. active such differs the “new” sanctions two First, aspects. the Rules of call Conduct license accordingly that the It is ordered disbarment; calls for the “new” Code attorney as an at law of Thomas D.'Mc- Second, convic- stispension. or disbarment hereby cancelled Donald be and the same is ground tion as a for disbarment in the stricken hereby is ordered and name to be trial con- Code of Conduct was held of- attorneys kept in the from the roll of Flowers; viction conviction fice of the Clerk of this Court. conviction, is with a “new” Code final petition for dis- allowing viso the Bar to granted. Petition during suspension pendency barment or of appeal. HEFLIN, J., MERRILL and and C. MADDOX, JJ., concur. present
Analysis prospective and provisions that to Flowers reveals overrule present injustice
could work an which the COLEMAN, HARWOOD, BLOOD- is remedy but which 37(b) Rule does WORTH, McCALL, FAULKNER, eliminated the sanctions of the “new” JJ., concur in result. otherwise, a of Code. Stated reversal absolutely strip the Bar of Flowers would COLEMAN, in re- (Concurring Justice right petition until all its to for disbarment sult) : exhausted; whereas, “new” appeals are Code, on predicates which disbarment final theory respondent’s defense set of conviction, provides additionally is, substance, out in his brief that there dis- petition file a for immediate may his trial to was no evidence admitted at suspension after a trial convic- barment support finding jury of the exis- by the upon showing good tion of cause. crime tence of one or more elements that, charged; to merely Flow- for the lack of evidence we cannot overrule
Since support finding guilt, judgment of injustice ers alluded of and avoid 430 upon petition
conviction 144 which the for dis- is violating barment based is void as YEARGIN, Al etc. spondent’s rights under Amendments XIV v. and XIII of the Constitution of the United States, and Section 32 of the Constitution Joseph V. DONNELLY and Thelma 1901; that, judgment Donnelly. because the R. void, of conviction is there no basis for SC 633. granting respondent. to disbar Supreme Court of Alabama. support In theory, respondent of his cites May 30, 1974. Thompson Louisville, City v. 362 U.S. S.Ct. L.Ed.2d other
authorities.
Respondent concedes that the pending appeal conviction is on before Court of Criminal of Alabama.
Respondent appears recognize that his present
contentions on collateral attack conviction, says that a judgment may
void collaterally. be attacked
I concur in holding that this court
ought not to entertain a collateral attack
on a appeal while an from the pending, and I concur
granting petition of the Alabama State
inBar the instant authority case on parte Bar,
Ex 285 Ala.
Respondent does not in his brief contend
that the case last cited is not to fol- be
lowed, and, as I argu- understand the oral
ment, respondent does not contend that Ex
parte Bar, supra, should be State
overruled or posture modified. In this case, I granting concur in the instant Bar, my although tht State expressed
views in dissent in Al- Ex Bar,
abama supra, unchanged. remain
BLOODWORTH, J., concurs. FAULKNER, (concurring Justice
sult) .
My concurrence the result is to be disagreeing
construed as in manner holds portion opinion
with that
that McDonald’s reinstatement be both will
automatic retroactive the event appeal.
criminal conviction is reversed on