State v. Holland, 112 Iowa 256

State v. Holland

112 Iowa 256 | Iowa | 1900

Given, J.

*2592 *258I. .V bi-ief outline of the facts will aid in understanding the questions .to be considered. James F. *259Howard, then a young man, was admitted to the bar in 1896, and commenced the practice of law in Webster City in and near which place he had lived for many years, and where he was held in high esteem as an honorable man. Nor some time he occupied the same office with George O. Olmstead, then county attorney, and, although not in partnership, he occasionally assisted Olmstead in his professional work. One George Barber retained Olmstead as his attorney to defend an action by Mrs. Barber for divorce and alimony. Barber converted some notes he had into cash, realizing $3,997.50 therefor, which he placed in the hands of Olmstead, to put it beyond the reach of Mrs. Barber on any judgment she might recover for the alimony. Olmstead paid Barber small amounts from time to time, which, with his charges for services, about covered the excess over $3,000 of the money which Barber gave him. When Olmstead received the money he took a time certificate of deposit, due in one year, in his own name, for $3,000, and the balance he had credited on his own account. Howard, at the instance of Olmstead, aided in the preparation and trial of the divorce case; and, although he may not have known- what disposition Olmstead made of the money, he undoubtedly knew of its receipt by Olmstead, and the purpose thereof. On the trial of the divorce case, Barber testified that he had been robbed of his money while in Chicago — a statement that both Olmstead and this defendant knew to be false. There is no evidence that the defendant advised or consented to Barber’s giving this false testimony, and, being only an assistant in the case, it may be that he was powerless to prevent it; but not so with Olmstead, who, no doubt, advised it. At the time the $3,000 certificate became due, Barber came to Webster City, and demanded his money of Olmstead, who denied that ho was owing him anything, intimated that he mighjg be prosecuted for perjury, and paid him $40 to enable him to leave the town. Olmstead solicited the defendant to assist him in scaring. *260Barber away, and offered to pay him $50 to do so, but defendant testifies that he refused to do so, and went to the depot, where Barber was about to leave, and induced him to return, promising that he would assist him in getting more money out of Olmstead. Barber and the defendant then agreed that defendant should act for Barber, and that he should have one-haJf of whatever they got from Olmstead. They returned and pressed Olmstead for further payment, and the result was that Olmstead paid Barber $250, of which defendant got $50. Barber wrote and signed a receipt to Olmstead for $3,180, to which Olmstead required the words “in full of all demands up to date” to be added, which was done, and Barber then left the city. After-wards, on the same day, Olmstead gave his check to the defendant for $250, which defendant testifies was on a settlement between them for office rent and services rendered by defendant to Olmstead in typewriting, etc., and that Olmstead refused to settle with him until after Barber had gone. On the same day (May 11, 1898) the defendant signed and delivered to Olmstead his affidavit, executed before E. W. Biggs, notary public, as follows:

“Affidavit. I, James F. Howard, being first duly sworn, do depose and say that I was attorney for George Barber on the eleventh day of May, A. D. 1889, in a settlement of all accounts and demands of whatever kind or nature between G. C. Olmstead and George Barber, and especially including $3,000 borrowed money; that, up to and on the above date, George Barber received the sum of $3,180 in money and services from said George O. Olmstead, and receipted to him for the same on said day, in full of all demands, of whatever kind and nature, existing between said George Barber and G. O. Olmstead on said date; that said settlement was made at the office of G. C. Olmstead, and there having been a dispute and other items of account between G. O. Olmstead and George Barber, and the amount due George Barber being in dispute, the said amount of *261$3,180 was voluntarily and freely agreed upon as the amount due, amount paid in money, and services up to this time, to said George Barber; that said settlement was freely and voluntarily made on both sides. [Signed] James E. Howard.

“Subscribed and sworn to before me this eleventh day of Hay, 1898, by James E. Howard. E. W. Biggs, Notary Public in and for Hamilton County, Iowa.”

Concerning this affidavit the defendant testifies as follows: “He said ho was going to Oklahoma, to run for county attorney down there, and.that Barber had gone away, and neither of us would ever see' him again, and, if he was going to support me and get support for me here as county attorney, I ought to help him out down there, and he panted a statement showing that he had done the square thing with Barber. He wanted it in the form of an affidavit, and said that Biggs would put his seal on it without swearing me to it, or without knowing what was in it, or anything of the kind, and it would be just a confidential matter between him and me, and he would never show it to any one in the state. I asked what he wanted in the statement, and he said he just wanted it to show that he had paid Barber up, and that, if they sprung anything in politics down in Oklahoma, he wanted it to show that he had done the square thing up here. I told him I didn’t want to give anything of the kind, and that I wouldn’t swear to anything of the kind at all, and he said I wouldn’t have to. I finally consented to give it to him, and he went up to my office, and he dictated what he wanted, and I wrote it down in pencil, and then on the typewriter. I started to write it on the typewriter, and got down to the place where I saw very plainly that the affidavit would conflict with itself, and I said: ‘What is the use of making this for $3,180, all you owed him, and then stating that the settlement was free, fair, and voluntary ?’ I said: ‘It is inconsistent. Nobody could read it without, knowing it was a lie here, any*262way? ‘Now? I said, ‘if you say $250, and then say the settlement was free, fair, and voluntary, it would be consistent with itself, anyway? He said he wanted it just as he had dictated it to me. I told him that I wouldn’t give it to him; that anybody that would read it would know that it wasn’t so. He renewed his promise not to show it to anybody in this state, and said that Biggs wouldn’t know what it was, and that, under any consideration, ho wouldn’t show it to anybody here. ‘Well? I said, ‘Biggs will know what is in it, anyway? Biggs was the notary public that I was going before to have him put his seal on it. ‘No? he said, ‘ho won’t’ — not to let Biggs read it at all. So I finished up the affidavit part of it, and took it out of the typewriter, and rolled it around on the back side to put the jurat on, so Biggs couldn’t see it,- — so- he couldn’t read the affidavit. Olmstead said, ‘What are you. doing that for?’ I said, ‘So Biggs won’t see it? lie said it was no good that way. lie says, ‘You won’t have- to swear to it, and you won’t have to show it to anybody, and it is just a confidential matter, and I will see that nobody sees it? I told him if Biggs put his seal on it without swearing me, I would give it to him, and if bo didn’t I wouldn’t. I went down to Biggs’ office, and O.lmstead! was up to ;iis office, — Hr. Biggs wasn’t there, and on the way back stopped at Olmstcad’s and told him that Biggs wasn’t in, and that I would go down in an hour or so, and have him put his seal on it. He says, ‘Go down and have Counts put his seal on? and I says, ‘I wouldn’t trust Counts for anything? I started out of the office, and he says, ‘Wait a minute? and he pulled out his check book from his pocket, and I says, ‘Never mind. I will get that when I come back? (This $250 check that had been written out before that.) I went down in about half an hour and asked Biggs to put his seal on it, and he did. I took it and went back to Olmstead’s office. Hr. Biggs didn’t swear me to it, and I didn’t sign it in his presence. I took it back and gave it to Olmstead. If Hr. *263Biggs had sworn me to it, I wouldn’t have given it to Olmstead.” Afterwards the defendant gave Olmstead a statement in writing saying, among other things, that “there was nothing unnsnal took placo at the settlement.” On the trial of the case of Barber against Olmstead this -defendant testified that before the settlement Olmstead threatened to prosecute Barber for perjury, and that ho advised Barber that he had better lose bis money than run the risk of going to the penitentiary.

3 II. Section 325 of the Oode provides that in proceedings like this, commenced by the direction of the court, the court must direct some attorney to draw up- the accusation. Defendant complains that three attorneys were “directed to take charge of said proceedings, draw and file the proper accusation,” etc. Surely it was im-* material to the defendant whether the accusation was drawn by one or more attorneys. The contention is without merit. The claim that the accusation is not sufficiently specific is equally without merit. It plainly charges the defendant with conspiracy- with Olmstead to cheat Barber.

4 III. Oode, section 324, provides: “The following arc sufficient causes for revocation or suspensión: _(1) When he has been convicted of a felony, or of a misdemeanor involving moral turpitude; in either of which cases the record of conviction is conclusive evidence. (2) When he is guilty of a willful -.disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession. (3) A willful violation of any of the duties of an attorney or counselor-as herein-before prescribed. (4) Doing of airy other act to which such a consequence is by law attached.” Appellant contends that these causes are to the exclusion of all others, that he is charged with a crime under the first clause, and that his license cannot be revolted or suspended until after conviction. There is some conflict in the cases on these questions, hut, in the view we- take of this *264ease, we are not called upon to consider them. Turning to section 318 of the Code, we see that it was “hereinbefore prescribed” as follows (section 318) : “An attorney and counselor who is guilty of deceit or collusion, or consents thereto, with intent to deceive a court or judge or a party to an action or proceeding, is liable to be disbarred, and shall forfeit to the injured party treble damages to be recovered in a civil action.” The charge is clearly within these provisions.

•'5 IV. Appellant complains that the court did not pass upon the sufficiency of the accusation before entering an order requiring him to appear. The cause for ordering this proceeding came to the knowledge of the court in the trial of Barber against Olmstead, and thereupon the court appointed three attorneys to prepare and serve the accusation, which was done. The defendant appeared to it, and its sufficiency was passed upon by the rulings on his motions and demurrer. Section 326 of the Code provides that, if the court deems the accusation sufficient, an order shall be entered requiring the accused to appear. There was no possible prejudice to the appellant by the order in which this proceeding was commenced. He also contends that the final order of the court is insuffi-* cient, in that it does not find him guilty of the charges. The charge is of certain facts which show conspiracy, and the prayer, that the accused be found guilty and disbarred. The court found “that the application of the plaintiff, through the commission formerly appointed by the court, should be granted.” There being but one charge, it is clear from the record that defendant was found guilty of that charge.

6 V. Appellant’s remaining contention is that the evidence fails to sustain the charge. We fully concur with the cases cited to the effect that judgment of disbarment should only be pronounced upon clear and convineing proof, and that when the evidence is conflicting the attorney should not be disbarred, “where the evi*265dence shows that for many years the defendant has borne a good reputation.” See State v. Cowing, 26 Or. 572 (38 Pac. Rep. 1090) ; People v. Pendleton Co. Solo. Sup. (30 Pac. Rep. 1041) ; In re Catron. 8 N. M. 253 (43 Pac. Rep. 724). Appellant insists that he did not become an afctruney for Barber until the agreement made just prior to the time they together demanded more money of Olmstead, that he refused to act for Olmstead in getting Barber away, and that after his employment by Barber he did all he could to get the largest possible sum for Barber. Barber substantially corroborates the defendant as to these matters, and he evidently believes that defendant acted in good faith and honestly towards him, but he so believes because he had no knowledge of any conspiracy between Olmstead and the defendant. The defendant knew how and why Olmstead came into possession of the money, and of his purpose to cheat Barber. He knew of the perjury Barber had committed, and of Olmstead’s piulóse to use the fear of prosecution to terrify Barber out of the county. He knew that Barber had received $40 and was about to leave town, but he also knew that he might return, and that as yet Olmstead had nothing to show a settlement or payment. If nothing further appeared, we might conclude that the defendant acted in good faith in following Barber and inducing him to return, but we have the fact that defendant and Olmstead together watched to see that Barber did leavq and when he was gone defendant signed and gave Olmstead his affidavit, and Olmstead gave him a check for $250. Defendant says he never in fact swore to the affidavit; yet he gave it to Olmstead, duly signed, certified, and sealed, as evidence with which to show that the settlement with Bar-< her was “freely and voluntarily made,” when he knew that it was made by Barber under threat and fear of prosecution. The check, he says, was in settlement of a claim he had against Olmstead. Rather strange- that this claim that matured months before should be settled immediately after *266Barber’s receipt in full to Olmstead had been obtained, and Barber had left the county. We will not discuss the evidence further. It is sufficient to say that it fully sustains the findings of the court.

7 VI. During the introduction of evidence on behalf of the defendant, the plaintiff filed an amendment to the accusation, sotting up additional acts committed by the defendant, which amendment was stricken on defendant’s motion; and from this ruling the plaintiff appeals. Conceding that the right to amend existed in such cases as this and that plaintiff may appeal under this record, — questions which we do not determine, — yet there was no error in the ruling. The additional facts alleged were all provable in support of the charge of conspiracy. Therefore there was no call for the amendment, and no error in striking it. It follows from the conclusions announced that the judgment of the district court is affirmed on both appeals. — Aeeibmed.

Granger, C. J., not sitting.