In re Shoemaker

2 Pa. Super. 27 | Pa. Super. Ct. | 1896

Opinion by

Smith, J.,

This is an appeal by William A. Shoemaker, an attorney at law, from the decree of the court of oyer and terminer of Philadelphia, suspending him from his office of attorney for a period of one year. Under the provisions of the act of May 19, 1879, the appellant is entitled to have his case reviewed de novo. Whether that part of the act allowing new testimony to be submitted in the appellate court is of any force here in view of the act of June 24, 1895, providing that this court shall have no original jurisdiction except on writs of habeas corpus, need not be considered, as the case was presented to us upon the testimony introduced at the hearing in the court of oyer and terminer.

The appellant was interested as counsel in a motion for a new trial on behalf of H. H. Mudgett, alias Holmes, who had been convicted of murder in the first degree. In support of the motion, the appellant, on November 18, 1895, read and presented to the court an affidavit purporting to have been made by one Blanche Hannigan, wherein a fact was asserted, material to the main question. The district attorney, denying the genuineness of the affidavit, called the woman who subscribed it, and other witnesses, to establish its falsity, and fraud in its procurement. In December following, a rule was entered requiring the appellant to show cause why he should not be disbarred as an attorney of that court, upon the ground that on November 18, 1895, he “ produced and read to the court a false and fraudulent affidavit by one Blanche Hannigan, which was fabricated by him, and asserted that the. said Blanche Hannigan cheated it to him; ” to which the appellant made answer. A hearing of this rule was had January 11, 1896, when the appellant was represented by counsel, and witnesses were called in denial of some of the testimony adduced against him. On March 14, 1896, the court made an order suspending the appellant from his office of attorney for the period of one year from that date.

It seems that the district attorney, having learned that an effort was being made to procure a witness who would swear to alleged declarations of Pitezel (the man who was slain), sent for the detective, a man named Schwechler, who was endeavoring to secure such a witness and was then in communication with the appellant for that purpose. The detective disclosed the project to the officers of the law and showed them the affidavit in question, then unexecuted, whereupon it was arranged that the prosecuting officers would furnish a woman, a police matron, who would sign the affidavit for a consideration. The detective and the police matron visited the appellant’s office twice. On the last visit she signed the affidavit under the assumed name of Blanche A. Hannigan, and it was attested by a notary public in the usual form. For this she received $20.00 from the appellant, who kept the affidavit and presented it in court as stated. The details of the transaction are fully narated in the testimony, and from it we find the following leading and controlling facts : It is .uncontroverted (1) that the allegations of the affidavit were false; (2) that it was dictated by the appellant to a stenographer, in the absence of the affiant and before he had ever met her; (3) that the appellant paid $35.00 in connection with its procurement, $20.00 of which went to the affiant; (4) that on the argument of the motion the appellant dwelt on the importance of the affidavit and stated he was “ pleased to submit ” it to the court, and after reading it, added, “ To do justice to ourselves so far as our investigations have proceeded we have corroborated this in its entirety.” The testimony also, in great preponderance, shows that the appellant stated to the court the specific falsehood charged against him and made the substantial basis of the rule, to wit: “ that the contents of the affidavit had been dictated to him by the witness who had sworn to it,” and this was correctly found by the court to be, “ a statement absolutely untrue and which he (the appellant), does not now pretend was true.” According to the record he presents to us, everything the appellant said and did in court, until the integrity of the affidavit was assailed, was in complete affirmance of its correctness and of his good faith and circumspection in securing it.

Not until it was manifest that the district attorney had abundant proofs to impeach it, did the appellant show any disposition to acknowledge the truth concerning the affidavit, and even then his admissions were limited to what was plainly incontrovertible. The appellant’s own version of his connection with the procurement of the affidavit discloses a culpable indifference as to its truth or falsity; although the oath of an attorney that he will behave himself in the office “ with all good fidelity, as well to the court as to the client, and will use no falsehood,” plainly imposed on him the duty of diligence in discovering and excluding it. It is true the appellant in his answer denies any knowledge or intention of wrongdoing, and successfully impeaches the veracity of the detective he employed, but the unimpeached testimony and attendant circumstances are so clearly against him as to leave no reasonable doubt of his guilt.

In the light of the facts, upon no principle of truth or justice could we say that the court below erred in its conclusion. The distinguished counsel who presented Iris case to us urged that as the appellant was young, inexperienced and of a very nervous temperament, he should not be held to strict accountability for his conduct in court under the excitement of the proceedings ; but it is quite evident from the order .entered, that the court of oyer and terminer made due allowance for his inexperience and mental equipment, if these can be offered in excuse for wrongdoing. We are all of the opinion that the action of that court was highly tempered with mercy, and that no room is left for its further exercise here.

The question of the power of the court to make the order needs but little discussion. The seventy-third section of the act of April 14, 1834, provides that: “If any attorney at law shall misbehave himself in his office of attorney he shall be liable to suspension, removal from office, or to such other penalties as have heretofore been allowed in such cases by the laws of this commonwealth.” The act for which the appellant was suspended was done by Mm as an attorney in open court, in a cause then being heard. He read the affidavit for the purpose of influencing the action of the court in a judicial proceeding, and it is immaterial what particular order was sought through its use. That it was intended as a fraud upon the court is certain, and the appellant’s act in presenting it was clearly such misbehavior as the statute forbids, under penalty of suspension. It is not the law that a court cannot strike from its roll the name of an attorney who has committed an indictable offense in his office of attorney, wMle an indictment therefor is pending against him. The argument in support of this proposition overlooks the fact that proceedings of disbarment and by indictment are essentially different M their nature and purposes. A summary proceeding to disbar is limited to professional misconduct; it may be instituted in any court of record, by rule, motion, or petition; and it is to be disposed of by the court. Prosecution for a crime must be in a court of criminal jurisdiction, and be disposed of by the court and a jury upon mdictment. Disbarment is for the purpose of protecting the courts and the public from an attorney whose conduct has shown him to be unworthy of confidence; but no criminal sentence can be imposed M such a proceeding. A prosecution by indictment is for the purpose of pumshing the guilty, and by example deterring others from committing crime; but disbarment can be no part of the sentence. Furthermore, many causes for disbarment are not indictable, or otherwise witMn the jurisdiction of the criminal courts. Differing in purpose and effect, proceedings m one are in no wise dependent on proceedings in the other. An acqmttal after trial under an indictment would, however, (in Pennsylvarna) prevent disbarment for the alleged offense of which the defendant was acquitted. The suspension or disbarment of an attorney is, like his admission, a judicial act, based upon due inquiry mto his fitness for the office. And when a court discovers that an attorney has ceased to merit its confidence in his professional relations, its duty is to disbar him. These well established principles are abundantly illustrated and verified in the following eases, and fully vindicate the entire action of the court below: Brackenridge’s Case, 1 S. & R. 187; McLaughlin v. The District Court, 5 W. & S. 272; Austin’s Case, 5 Rawle, 191; Commonwealth v. Newton, 1 Grant, 453; Dicken’s Case, 67 Pa. 169; In re Samuel Davies, 93 Pa. 116; Ex parte Steinman, 95 Pa. 220; In re H. T., 2 Pennypacker, 84; Serfass’ Case, 116 Pa. 455; In re Gates, 17 W. N. C. 142; Splane’s Petition, 123 Pa. 527; In re Van Horn, 135 Pa. 110; Saxton v. Stowell, 11 Paige, 526; In re Percy, 36 N. Y. 651; Ex parte Bradley, 74 U. S. 364; Bradley v. Fisher, 80 U. S. (13 Wallace), 335; Ex parte Robinson, 86 U. S. (19 Wallace), 505; Ex parte Wall, 107 U. S. 265-318.

The order of the court of oyer and terminer is affirmed, and the appeal is dismissed at the costs of the appellant.