State Ex Rel. McLean v. Johnson

Clark, C. J.

Thе court found as a fact that as to the several convictions prior to May, 1915, the defendant believed that be bad a right to-sell, on the ground that the local prоhibition law of Cumberland (under which the manufacturer had the right to sell wine made from grapes grown on his own land, in quantities of not more than two gallons) had not been repealed by Revisal, 2061, the State Prohibition Law, which had been ratified on a referendum to the people of the State by a majority of 44,000 votes, and that he had been so advised by an ex-solicitor. This Court has observed, “Ignorance of the law excuses no-one, and the vicarious ignorance of counsel has no greater effeсt.” S. v. Downs, 116 N. C., 1066; S. v. McLean, 121 N. C., 601. As the defendant was a lawyer himself, there was all the less excuse for his basing his disregard of the law upon his ignorance. However, he had the full benefit of this defense, for in аll the convictions prior to May, 1915, no-sentence whatever had been imposed upon him.

The conviction of May, 1915, was after he had been enlightened, but he prоcured a pardon from the Governor from that sentence, upon condition of his observing the law thereafter. Notwithstanding the continued and remarkable lenienсy shown the defendant, he was again convicted, in August, 1916.

When this case was here before (S. v. Johnson, 171 N. C., 199), the Court held that Revisal, 211, is still in effect, and that the act of 1907, chap. 941, was merely additional and not a repeal thеreof. Revisal, 211, reposes in the courts specific authority to disbar an attorney who-has “been convicted, or in open court confessed himself guilty, of some-criminal offense showing him to be unfit to be trusted in the discharge of the duties of his profession.” ‍‌‌​​‌‌‌‌‌​‌‌‌​​​​​‌‌​‌‌​​‌‌‌‌‌​​‌‌​‌‌​‌​‌‌‌​​​‌‌‍The law is an honorable career, and in no profession should the moral tоne be higher; in none is the average of ability greater and the confidence reposed by the public more implicit. To a marked extent the government of thе country is committed to their care, and almost entirely as to the courts. The defendant, as a lawyer, took an oath to “maintain and support the Constitution and thе laws.”

In England and in many States of tbis country there is an “habitual criminals statute,” under which persons who have been convicted formerly of the same offense are punished more severely than for a first offense (Moore v. Missouri, 159 U. S., 673; 1 McClain Cr. Laws, 528), and this has been held constitutional (Sturtevant v. Com., 158 Mass., 598; McDonald v. Mass., 180 U. S., 311; 12 Cyc., 949). In this State this provision (Revisal, 3249) applies, especially on a second conviction of larceny (Revisal, 3500, 3506; S. v. Davidson, 124 N. C., 842), but it. has also been held that where one has been convicted oftener than ‍‌‌​​‌‌‌‌‌​‌‌‌​​​​​‌‌​‌‌​​‌‌‌‌‌​​‌‌​‌‌​‌​‌‌‌​​​‌‌‍once-of violation of law the court is entitled to consider it in the quantum of punishment imposed, not to exceed the statutory maximum. S. v. Wilson, 121 N. C., 654; In re Holley, 154 N. C., 163.

From the number of convictions, the defendant may well be styled a. professional “blind tiger.” This offense has almost necessarily as adjuncts a continued defiance of the law by secret sales, often through disreputable characters, whom the seller must use, and sales are usually made in questionable places.

It is impossible to conceive that the profession of the ministry or of' medicine would tolerate for one moment in their ranks an habitual violator of the laws. Whеn recently a member of the medical profession was convicted of a heinous offense in Charlotte (S. v. Summers, 173 N. C., 775), that profession, refusing to shield the offender, asked fоr his punishment, or at least refrained from joining in the application for his pardon.

It is impossible that the courts, which must rely, to a large extent,.. upon the legal profession for the maintenance of respect for the administration of justice, should hold worthy of a place in its ranks any one-who, in spite of repeated aсts of clemency, has continued to violate the-law. We ‍‌‌​​‌‌‌‌‌​‌‌‌​​​​​‌‌​‌‌​​‌‌‌‌‌​​‌‌​‌‌​‌​‌‌‌​​​‌‌‍cannot believe that a professional “blind tiger,” or any habitual criminal, nor one who has been sentеnced to the roads for three-months for selling liquor unlawfully, and whose sentence was affirmed by this Court on apjmal, should occupy a place in the honorable profession to which we belong.

The judge below, after finding the above facts, held that “The criminal offenses of which respondent James H. Johnson has been convicted,, or in open court confessed himself guilty, as above set forth, are not such as show him to be unfitted to be trusted in the discharge of the -duties of' his profession, within the meaning оf Revisal, sec. 211,” and declined to disbar him. This was a conclusion of law, and is erroneous. Those who aid in the administration of the law, whether as judge or counsel, should havе clean hands, be respecters and not violators of the laws. Like-Gamaliel, they should be learned in the law, and of an honorable report, among all men.

In Ex parte Moore, 63 N. C., 397, thе Court served a role for contempt, with a view of disbarring 108 members of the bar wbo bad joined in signing an article reflecting on the Court, wbicb was published in the newspapers оf the State. Tbe Legislature, in passing the subsequent act, now Revisal, 939-945, restricting the power of the court in cases of com tempt committed out of the presenсe of the court, intended to forbid the disbarring of counsel in sucb cases as punishment .for contempt. It was not intended to restrict the right to disbar in cases calling for disbarment wbicb was not imposed under the power to punish for contempt. There has been some confusion in not distinguishing between disbarment for contempt, wbicb was restricted by the statute, and disbarment on account of the misconduct of counsel in matters affecting bis fitness to be a member of the bar. Ex parte Schenck, 65 N. C., 353, and Ex parte Biggs, 64 N. C., 202, came under the former bead, and the rulе was discharged because the libel charged did not affect bis fitness “to be trusted in the duties of bis profession.”

In Kane v. Haywood, 66 N. C., 1, where the motion was to bisbar because of misconduct аs counsel in the misuse of funds coming into bis bands, the court, mistakenly, as it seems to us, held that as the defendant could not be disbarred for contempt in not paying the money into court because be was unable to do so, that the act of 1871, restricting the power of the court to disbar for contempt, deprived the court of the powеr to disbar for the willful and corrupt conduct in appropriating ‍‌‌​​‌‌‌‌‌​‌‌‌​​​​​‌‌​‌‌​​‌‌‌‌‌​​‌‌​‌‌​‌​‌‌‌​​​‌‌‍the money of bis client. Tbe decision in that case has never been satisfactory to the profеssion, and “suspicion was not absent,” as Csesar said of Orgetorix, that the court extended the meaning of the act wbicb deprived them of the power to disbar for contempt to a case to wbicb it did not apply. This has been cured by Revisal, 212, wbicb requires the court to disbar any lawyer wbo shall appropriate property оr money of bis client.

In re Applicants for License, 143 N. C., 1, did not pass upon the point now before us, but simply held that in examining students for license the court was not acting as a judicial body and was restricted to the requirements provided by the statute, wbicb were that the applicants should be found to have a competent knowledge of the law and should furnish a certificаte of moral character, signed by two reputable members of the bar; and hence the Court could not go into an investigation of the character of the аpplicant of its own motion. This was remedied by the provision now in Revisal, 207, that the applicants shall not only satisfy the Court of their competent knowledge of the lаw, but of their upright character.

In re Ebbs, 150 N. C., 44, held, by a divided Court, that counsel convicted of felony in another State could not be disbarred in this State, though it would be otherwise if the conviction had taken place in our own courts. Revisal, 211a, provides tbat an attorney at law must be disbarred upon conviction of felony or for appropriation of tbe money of bis client. And 211b gives tbe court power, in its discretion, to disbar an attorney upon being found guilty of conduct in bis profession involving willful deceit, or soliciting, directly or indirectly, professional business.

In S. v. Johnson (tbis defendant), 171 N. C., 799, tbe Court beld that the Court was not deprived by the statutes above cited from disbarring a lawyer when bis conduct is sucb as to render bim ‍‌‌​​‌‌‌‌‌​‌‌‌​​​​​‌‌​‌‌​​‌‌‌‌‌​​‌‌​‌‌​‌​‌‌‌​​​‌‌‍unfit to practice law, and that Eevisal, sec. 211a and 211b, did not restriсt tbe authority to disbar in cases coming under Revisal, 211.

Tbis case will be remanded to the court below, witb instructions tbat the decree of disbarment shall be entered upon thе records of tbat court, tbat it may be known tbat the law will be enforced against all alike. He who habitually violates the law is “unfit to be trusted in the discharge of the duties of bis profession,” and is not worthy to sit among those who as officers of the court aid in the administration of justice. Tbe order refusing to disbar the defendant is

Eeversed.

Case Details

Case Name: State Ex Rel. McLean v. Johnson

Court Name: Supreme Court of North Carolina

Date Published: Oct 17, 1917

Citation: 93 S.E. 847

Court Abbreviation: N.C.