40 Colo. 460 | Colo. | 1907
delivered tbe opinion of tbe court:
This is a proceeding instituted for tbe purpose of. disbarring respondent Charles A. Johnson. In
The first is that, while acting as district attorney of the sixth judicial district, he caused an information .to be filed in the district court of Montezuma county wherein one August Thompson was charged with having committed the crime of arson; that after the expiration of his term of office he engaged to defend Thompson against the accusation contained in the information.
It appears from the testimony in this matter that Johnson was appointed in the spring of 1902 to' the office of district attorney to fill a vacancy, and that he served as such district attorney until the succeeding election in the fall of 1902, when his successor was elected and qualified. Shortly after his appointment he obtained information that two men of the name of Belcher had burned a certain flour mill situate in the county of Montezuma, and caused them to be arrested, and at the November term of court he filed an information against them, charging them with the burning of this mill. After he had filed the information against the Belchers, the owners of the mill informed him that Adam Lewy knew that some other person had burned the mill. Lewy made an affidavit that Thompson had stated to him that he (Thompson) and certain other persons not named set fire to and burned the mill. On the strength of this affidavit respondent filed an information against Thompson. Thompson was not immediately arrested. The case against the Belchers was tried and one of them convicted and sentenced to the penitentiary. In the month of December, an election having taken place, the newly elected district attorney assumed the duties of the office. In April following it appears that Thompson was arrested and wrote to Johnson requesting him to appear in
Inasmuch as respondent presented his connection with the case fully and frankly to the court in the presence of the district attorney, and the court entered an order authorizing and permitting him to enter his appearance for the defendant Thompson and to defend him, the district attorney making no objection thereto, we cannot see that respondent violated his oath of office or any of the duties which he owed to the state or to the profession as an attorney-at-law. While this is a practice which should not be engaged in and only permitted under very rare circumstances, we believe that where the trial court, having knowledge of all the circumstances, makes an order permitting counsel to defend one against whom the same counsel has prepared an information, and where the district attorney is cognizant of the making of such order and makes no objection thereto, in the absence of any proof showing that the attorney made use of any information which he had previously secured while in the employment of the state, it does not present a case which would justify us in disbarring counsel.
The burden was upon the petitioner in this matter to prove the guilt of the respondent. It has not done so. The circumstances of the transaction seem rather to support the testimony of respondent than that of the client who appeared against Mm. Ac
The third specification grows out of the following facts: It appears that a certain sawmill and lumber situate near Pagosa Junction and belonging to The Pagosa Lumber Company, of which one A. T. Sullenberger was-the manager, was destroyed by fire and at the same time a house belonging to Delfido Archuleta was burned and an attempt was made to burn the store of The Archuleta Mercantile Company. It seemed to be apparent that the house and sawmill were burned by the same parties who attempted to burn the store. Two Mexicans of the name of Montalvo and Garcia were arrested, charged with the burning of this property. Sullenberger employed respondent to assist in the prosecution of these two people. J. M. Archuleta, the president of The Archuleta., Mercantile Company, testifies that the Archuletas were to assist in the paying of respondent; and that that arrangement was made by Mr. Sullenberger. J. B. Martinez also testifies that Sullenberger had informed him that he and the Archuletas were going to employ Mr. Johnson to assist in prosecuting the case. Respondent testified that he was in the joint .employment of the Archuletas and Sullenberger, and that his sole employment was for the purpose of prosecuting the two Mexicans, and that they were under arrest a.t the time respondent was employed. Sullenberger testifies that he was the sole employer. After respondent was employed and some investigations were being made for the purpose of securing testimony, a woman named Clara Chacon, who is spoken of by the witnesses as being a squaw and also as being of bad repute, stated
We see nothing culpable in the action of respondent in this matter, and the petition for his disbarment will be denied.
Petition for disbarment denied.
Decision en banc.