26 Mont. 241 | Mont. | 1902
delivered the opinion of the court.
On December 4, 1901, one-Theodore A. Mayer, appearing in person, in this court, presented a written accusation verified by his own oath, containing certain charges of fraud and deceit against Elbert D. Weed, a member of the bar of Montana, and asking for an order that the name of said Weed be stricken form the roll of attorneys and counselors at law. The accusation contains five separate counts. The first involves a transaction between the accuser and Weed', and charges, in substance, that on December 7, 1894, the said Weed made a written contract with Mayer, under the terms of which he sold and
The attorney general has appeared by request of this court as amicus curiae, and has filed a written argument in support of the charges. He concedes’ the contention of the accused that the accusation attempts toi present a cause which falls within the class contemplated by Subdivision 5 of Section 402, supra, and that if the facts alleged do’ not show the commission of such a crime or misdemeanor, or such acts of deceit as imply moral turpitude in the accused, the charge is not- sufficient, in substance, toi warrant an investiga-.
1. The part of Section 402, supra,, pertinent to this discussion, is the following: “An attorney and counselor may be removed or suspended by the supreme court * * * (5) who is guilty of any deceit, malpractice, crime or misdemeanor.” The purpose and intent of this provision was considered by this court in the case of In re Wellcome, 23 Mont. 140, 58 Pac. 45, and the application to be made of it is stated thus-: “Subdivision 5 is broad enough in its language, and sufficiently comprehensive in substance, to embrace all public offenses, wheresoever committed, by attorneys, and to clothe the court with jurisdiction of an accusation imputing to an attorney the commission of any crime or misdemeanor wherever the offense of itself involves or the circumstances of its perpetration reveal the existence of moral turpitude, or the facts attending it evince such gross misconduct as exhibits his unfitness to' remain in the profession. The fifth subdivision, notwithstanding its ungrammatical construction, seems to have been enactetd ex industria, to the end that the court may purge the bar of those attorneys whose characters, as illustrated by the evidence esr tablishing the truth of the charges preferred, lack the attributes of morality which are an essential to admission, and which should be required as a continuing condition of the right to practice.’’ In other words, when an attorney is shown to have committed a crime or misdemeanor, attended by such circumstances as imply moral turpitude, or when he has been guilty of such gross misconduct falling short of actual crime that it must have been the result of a depraved nature or immoral habits, rendering him unworthy of the confidence of his fellow men, he should be deprived of the right to remain in the profession, just as the. right to enter it would have been denied
That no crime is charged in this count is clear. Section 200 of the Fourth Division of the Compiled Statutes of 1887, which were in force at the time the conveyance to Smith is alleged toi have been made, reads as follows.:
“Sec. 200. ' Any person or persons after1 once selling, bartering, or disposing of any tract or tracts of land, town lot or lots, or executing any bond or agreement for the sale of lands, or town lot or lots, who shall again knowingly or fraudulently sell, .barter, or dispose of the same tract or tracts of land, or town lot or lots, or any part thereof, or shall knowingly or fraudulently execute any bond or agreement to sell or* barter, or dispose of the same land, or lot or lots,. or any part thereof, to any other person or persons, for a valuable consideration, every such offender, upon conviction thereof, shall be punished by' imprisonment in the territorial prison not less than one year, nor more than five years.”
If we substitute the conjunctive “and” for the disjunctive “or” connecting the words “knowingly” and “fraudulently,” this section is made identical, except in the extent of the penalty, with Section 132 of the Act of the legislature of California of 1850 in relation to- crimes and punishments. Like many other provisions of our Codes, the section quoted was adopted from the California Act, though we find similar provisions among the criminal statutes of other states. The purpose of the legislation is to. declare it a felony toi sell, barter, or dispose of lands, or to make an agreement therefor, for a valuable consideration and with fraudulent intent, after having once sold them-, or made an agreement to. sell them, toi another.
The construction to be given1 to the phrase “knowingly or
The essence of the offense-, under all these statutes, is, however, a second sale of the same land, for value, with intent to defraud. The section (200) of the Compiled Statutes quoted is found in the chapter entitled “Offenses Committed by Cheats, Swindlers and Other Fraudulent Persons,” and the act denounced. by it as an offense is thus- classed with a number of offenses, each of which requires a specific fraudulent intent.
Looking, therefore, to the origin and purpose of the legislation, it seems clear that, in order to complete any offense falling within the purview of the statute, the second sale or disposition of lands must be made, not only with full knowledge of the prior conveyance, but also with a fraudulent — that is, a deliberately planned — purpose and intent to deceive, and thereby gain an unlawful advantage. This view would require “or” co be read “and.” It is strengthened by the additional consideration that, if the disjunctive be allowed to stand, with its ordinary signification, the statute would render every second sale of lands by the same person for a valuable consideration a felony, whether it be fraudulently made or not; for it is hardly conceivable that such a second sale could be made by the same, person without knowledge of any previous sale made by him. To illustrate: If A. should sell to B. by a good and sufficient deed, which was properly put on record, and then should sell to C., after fully informing C. of the former sale to B., A. would not be guilty of an offense, within the meaning of the statute’. This is the identical case considered in People v. Garnett, supra, wherein it was held that under such circumstances no offense was committed, because it appeared that there was no fraudulent intent.
While wa should, ordinarily, be reluctant, to say that the legislature did not intend to denounce as an offense an act which clearly falls within the letter of the statute, we do. not hesitate to do so when the act in question is in itself without harmful effect or tendency, and it is reasonably clear that the‘legislature did not intend to prohibit it. We shall therefore read the statute as identical in the particular mentioned with the California statute, and construe it accordingly.
To make out the offense, it must be alleged and proven: (1) That a sale and conveyance, or an agreement therefor, have been made; (2) that a second sale and conveyance, or an agreement therefor, have been made for a valuable consideration;
The facts set forth in the first count of the accusation fall very far short of these requirements. So far as appears therefrom, there was no intent to defraud either Mayer or Smith by the transfer to Smith. The conveyance to Smith may have been upon conditions and stipulations preserving all of Mayer’s rights, or Avith such reservations as would enable Weed to procure title for Mayer upon a tender by the latter of the remainder of the purchase price. It is nowhere "alleged that the conveyance Avas intended to defraud any one, nor that it Avas for a valuable consideration. It is alleged that Weed has refused to convey the title to' Mayer; but this he had a perfect right to do, so long as Mayer A\ras in default in making payment under the contract. There is no allegation that a tender has been made, nor any reason stated by Avay of excuse. While aa76 do not wish to be understood as saying that the charges in such cases as the one presented should be made with all the technical precision required in an indictment or information, nevertheless the accused is entitled to' know with Avhat particular offense he is charged, so that he may have opportunity to meet it with his proofs. It is therefore incumbent upon the accuser to state, in substance, the crime upon proof of which he asks the order of disbarment to be made. -
The facts stated in- this count do not show any such deceit practiced by Weed as would warrant the conclusion that he is so far unworthy of confidence that he should be deprived‘of his, office. There is, as Ave have seen, an absence of any allegation charging directly that he is not now in position to obtain the title for Mayer, Avhenever the remainder of the purchase money is tendered and a deed demanded. The failure on the part of Weed to mention the transfer to Smith when the payments were made in April, 1895, is entirely consistent with a purpose then and still entertained by ,him to make good his agreement whenever he should he lawfully required to1 do so. Any repre-
The gravamen of the charge seems to be the injury suffered by Mayer. It does not distinctly appear whether Mayer was in possession of the land at the time of the conveyance to' Smith. Therefore his rights and duties in the premises are not before us for consideration at this time.
2. The form of the verification of the accusation is as follows: “Theodore Mayer, being first duly sworn, on oath deposes. and says: • That he is the above-named petitioner; that he has read the foregoing petition, and knows the contents thereof; and that the facts therein stated are true of his own knowledge, except as to such matters as are therein stated upon information and belief, and as to those matters he believes it to be truei Theodore A. Mayer.” Specific objection is made to' it as to counts 2, 3, 4, and 5, on the ground that it does not meet the requirements of Section 420 of the Code of Civil Procedure. This section provides: “The accusation must state the matters charged, and be verified by the oath of some person to the effect that the charges therein contained are true.” The-language of this section is clear and explicit, and, construing it according to' its manifest meaning, the accusation must be-supported by the oath cf some one having knowledge of the-facts upon which it is based. .It requires but little consideration to arrive at the conclusion that the legislature did not intend that the time of this or the district court should be taken up with the investigation of charges based upon mere hearsay or rumor. Otherwise the way would be open to every discontented litigant to prefer a charge: against an attorney based upon information, _ and the result would be a serious in
3. As heretofore stated, the section of the Compiled Stafi. utes quoted was supplanted by Section 935 of the Penal Code of 1895. The latter section extends the penalty to a maximum of ten years in the state prison. Nothing said herein is to he construed as an intimation that a prosecution could or could not have been maintained after the adoption of the present Code for an offense committed while the older section was in force.
The objections are sustained, with leave to amend the accusation, in accordance with the views herein expressed, and attach a proper verification, within twenty days from this date; otherwise, the proceeding will be dismissed.