137 P. 736 | Okla. Crim. App. | 1914
First. This court permits typewritten briefs to be filed; but, when this is done, they should be executed in such a manner as to be legible. It is a violation of the rules of this court to file briefs typewritten upon paper which is so thin as to make what is written thereon scarcely legible. In such briefs paper of standard weight should be used, and the work should be so executed as to be legible. In this cause a typewritten brief of 58 pages was filed, which could only be read with great difficulty, and the court was compelled to waste much valuable time and labor in trying to find out what counsel for appellant was driving at. We have frequently had occasion to condemn the practice of filing such briefs, and trust that we will not find it necessary to do so in the future. If this admonition is not heeded, we will be compelled to strike such briefs from the record.
Second. As we gather from the brief of counsel for appellant, the contention is that the information in this cause should have been based upon section 271, Comp. Laws 1909, which is as follows:
"An attorney who receives money or property of his client's and in the course of his professional employment or business, and fails for a period of thirty days after receiving the same to *434 notify his client, and on demand to pay over to his client all of said money or property in excess of his agreed fee, if there be an agreed fee, and if not then in excess of a reasonable fee, shall be guilty of embezzlement and shall be disbarred, and may be disbarred without being prosecuted for embezzlement. An attorney who, at or before the time of the passage of this act, shall have collected money for a client and does not report and pay over the same to his client within thirty days after the passage of this act, shall be disbarred. If the property in any event is held for more than thirty days on the written order of the client, or if delivery is prevented by any cause (other than by the use of the property by the attorney) wholly beyond the control of the attorney, then he shall not be guilty of embezzlement nor be disbarred, but the burden shall be on the attorney to prove the cause of the delay."
The trial of the case was conducted, and appellant was convicted, under section 2673, Rev. Laws 1910, which is as follows:
"If any person being a trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator or collector, or being otherwise entrusted with or having in his control property for the use of any other person, or for any public or benevolent purpose, fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement."
The information could not have been founded upon section 271, as contended for by counsel for appellant, because said section is not, and never was, a part of the Penal Code of Oklahoma, and therefore could not be the basis of a criminal prosecution. It was a part of the civil law of Oklahoma regulating the conduct of attorneys, and applied to disbarment proceedings. This disposes of a great deal that is said by counsel for appellant which it is unnecessary to discuss here. The information in this case was properly based upon section 2673, Rev. Laws 1910, and the proceedings were properly conducted according to this section.
Third. When the first witness for the state was placed upon the stand, counsel for appellant interposed the following objections to the introduction of any testimony in the cause: *435
"Mr. Woolman: Defendant objects to the introduction of any evidence on behalf of the state in this case, for the reason that the information does not state facts sufficient to constitute a crime under the laws of the state of Oklahoma. The Court: Overruled. Mr. Woolman excepts. Mr. Woolman: For the further reason that there was no preliminary examination had in this case prior to the commencement of the action in the district court, as is shown by the record and proceedings had on the motion heretofore had in this cause. The Court: Overruled. Mr. Woolman excepts. Mr. Woolman: For the further reason that this cause was not brought on trial within — at the second term succeeding the time of the filing of the original information in this court, as shown by the proceedings had herein prior to the commencement of the trial. The Court: Overruled."
The information follows the language of the statute, and is sufficient as against the objection made. The objection that there had been no preliminary examination prior to the filing of the information in the district court cannot be presented in this manner, and is otherwise insufficient, because the record affirmatively shows that such a preliminary examination did take place. The objection that the case was not tried within the second term of the court after the information was filed, in the absence of a showing that appellant was ready for trial, and demanded a hearing, and objected to the continuance of the cause, cannot be considered. See Head v. State,
The record in this case contains nearly 400 pages, and from beginning to end is full of such objections and exceptions as above stated. The constant presentation and discussion of questions of law which have no application to the case, making dilatory pleas, and objecting and excepting to everything done in the trial of the cause, without reference to the substantial merits of the case, cannot do otherwise than weaken the defense. It makes the impression upon the minds both of the jury and of the court that the defendant is guilty, and is relying solely upon the technical skill of his counsel to secure an acquittal. It also unnecessarily consumes a great deal of time which should be devoted to the consideration of the actual merits of the cause, *436 or in the trial of other cases. It delays the administration of justice, incumbers the record, and adds greatly to the cost of criminal trials, and thereby entails an unjust burden on the state, and no good purpose whatever can be subserved by pursuing such a course, and it should not be encouraged by the courts.
Fourth. At great length counsel for appellant argues that this conviction cannot be sustained, because the record shows that appellant was never legally admitted to the practice of law in the state of Oklahoma. The record does show, however, that appellant was legally admitted to practice law in the state of Illinois, and as a matter of fact he held himself out to the public as a lawyer, and did practice law in Blaine county, Okla.; that he appeared as an attorney in a number of cases; and that he accepted employment and received pay in this case as an attorney. It is true that such conduct was illegal; but the commission of one crime can never be pleaded as an atonement for the commission of another crime. In ancient days under the common law the members of the clergy were not subjected to capital punishment; the presumption being that, on account of their supposed exceeding goodness, there must be some mistake, and they would not have willfully violated the law. Counsel for appellant seeks to reverse this rule, and claims that, on account of his exceeding badness, appellant should not be punished. The very question here presented is identical in principle with the question presented in the case of Ellington v. State,
"Where a guardian is charged with embezzlement of the trust funds of his ward, he cannot be heard to say that such funds were unlawfully acquired by him as such guardian. If he was agent enough to collect the money, he was agent enough to be punished for its embezzlement."
In this case, if Price was attorney enough to accept employment to collect this money, he is attorney enough to be punished for embezzling it.
Bishop, in his work on Criminal Law (3d Ed.) sec. 367, says: *437
"In reason, whenever a man claims to be a servant while getting into his possession, by force of his claim, the property to be embezzled, he should be held to be such on his trial for the embezzlement. Why should not the rule of estoppel known throughout the entire civil department of our jurisprudence apply in the criminal?"
The lawyers of Oklahoma can rely with confidence upon the support and protection of this court whenever their conduct is professional; but we are not going to stretch the law to screen and protect any lawyer who has been guilty of dishonorable practices. Leniency on the part of the courts and of the members of the bar towards such conduct has done more than any one cause to discredit the profession in the eyes of honest people. The time has come when the members of the bar and courts should act in such matters without fear, favor, or affection, and with a strong hand purge the profession of all unworthy characters. Practicing law is a necessary and honorable profession, and it should be confined to honest men. Lawyers should be held to the strictest accountability. Their opportunity for wrongdoing is great, and the public and profession should be protected from the illegal acts of dishonest lawyers.
Fifth. The testimony of the state's witness Ferguson that the Dobrinski order was placed by him in the hands of appellant for collection, to be applied to the debt due the Grennell Vehicle Company, is fully corroborated and sustained by a letter written by appellant on September 23, 1910. This letter is an admission of all the state contends for on this point. Out of the appellant's own mouth he stands condemned. It is true that in Winter's deposition said witness denied that the Dobrinski order was given for this purpose; but the testimony of E.S. Randolph, who, so far as this record goes, appears to be entirely credible, shows that Winter had told said witness that the Dobrinski order was for the purpose of paying the note due the Grennell Vehicle Company. It was also proved by a number of witnesses that the general reputation of Winter for truth and veracity in the community in which he resided was bad. It was also shown that appellant, before taking the testimony of the *438 said Winter, had stated that he was going to purchase his testimony, and that he could buy any kind of evidence he wanted. There is not one line of credible evidence in this record which would indicate good faith on the part of appellant. All of the testimony points to his guilt as conclusively as the spokes of a wheel point to the hub as a common center.
Counsel for appellant has presented fourteen specifications of error. We have considered each and every one of them in connection with the record, and find that they are each and all without substantial merit. Not one of them presents even a debatable question. The plain and simple truth is that, according to this record, appellant is guilty, and it would be a miscarriage of justice to set aside this verdict and judgment on the grounds relied upon.
Judgment of the lower court is therefore in all things affirmed.
ARMSTRONG, P.J., and DOYLE, J., concur.
