*1 921, 927, 88 “The S.Ct. Constitution L.Ed.-] against United States stands as a conviction of bar by American individual an Court means a coerced con- foreign been, now, There have and are certain na- fession. governments opposite policy: gov- tions with dedicated to an ernments which convict individuals obtained organizations police possessed power of an unrestrained against persons suspected seize state, crimes hold wring custody them secret from them confessions physical or mental So as the re- long torture. Constitution mains the basic Republic, law of our America will not have government.” that kind of judgment denying and order are a new trial reversed.
Shenb, J., Curtis, J., Edmonds, J., Carter, J., J., Traynor, and Schauer, J., concurred.
Respondent’s petition rehearing August was denied 24, 1944. Aug. A. No. 18883. In Bank.
[L. 1944.] WERNER, ERWIN P. Petitioner, BAR, v. THE STATE
Respondent.
Mark L. Herron for Petitioner.
A. W. Ashburn Respondent. and Jerold E. Weil for Bar of The Boardof Governors The State TRAYNOR, J. petitioner disbarred recommended that has of California proposed William McNeil in 1937 he ground that the bribing purpose of him for the give latter the Los An- Deputy Attorney District of Simpson, William a E. in- ensuing petitioner’s County. transaction led to geles The grand theft, and tried three attempted he was or dictment disagreed; on the second jury first trial the times. On the in Dis- reversed judgment guilty, but the was verdict was Cal.App.2d Appeal (People Werner, v. trict of Court convicted, again third, petitioner was 168]); P.2d on the Wer- (People judgment was this court. but the reversed appeal petitioner’s ner, 16 While Cal.2d court, proceed- Bar instituted pending in The State was this charging having him of ings against him, been convicted reversed, show felony. conviction was the notice to After the charge petitioner cause made the offer was amended defrauding intention McNeil with the of him. The local charged. committee found that committed the acts use The Board of found that Governors offered to illegal charge the funds to obtain dismissal he solicited of a against McNeil, and that he the offer with the intention made defrauding only McNeil. The evidence introduced before The State Bar in the Early was record of the third trial. stipulated course of proceeding, testi- “the mony reporter People as transcribed the case of The may the State versus Erwin Werner . . California . proceeding read and in this effect used with like force and transcript as the witnesses whose as found said legal were on testifying person, subject the stand and all objections either to form or as as to substance.” Petitioner irrevocable, stipulation concedes applicable, that if this it is admitted, and that properly the evidence was contends but stipulation inapplicable became because notice charge specific amended to acts instead conviction felony objection and that to the admission of tran- script trial of the criminal should been have sustained. stipulation provides
The transcript that the admis “in proceeding.” made, sible When it was was reason able proceeding that the precisely would involve expect type of proceeding amendment made. Since State Bar stayed pending petitioner’s appeal, outcome since unknown, outcome proceeding con could not be tinued, in the of a reversal, event an amendment of without the notice to make charge the commission acts of certain in the criminal trial than involved rather conviction at that trial. stipulation could hardly applicable be construed *4 only charge to a becoming conviction of crime without meaningless, provides reading testimony for it for the of the witnesses, and there would for reading be no reason such testimony merely to establish of a conviction crime. stipulation regarded
Even if the inapplicable, were transcript evidence was admissible. of the evidence at the criminal hearsay trial was Bar admissible State
615 hearsay proceedings is civil if Such admissible proceeding. testimony deceased, juris or out “The of a witness of the testify, given or in a former action diction, unable between relating (Code parties, the same to the matter.” same Civ. In 1870, 8.) proceedings gov criminal rule Proc., subd. § erning testimony other than defendant witnesses Code, 686, provides in Penal contained section which deceased, insane, juris of a witness out of the given diction, discovered, previous or who at a trial cannot be (See People Bird, may action, of the 132 be admitted. v. Petitioner, Cal. 261 259].) relying 1870, P. on section [64 8, subdivision Procedure, contends Code Civil imposed the conditions therein are not met. has It repeatedly held, been however, proceedings that disbarment governed are not by the of procedure governing rules civil (Johnson or Bar, State litigation. criminal 4 v. Cal.2d 744 Bar, Herron 928]; 212 State v. 196 Cal. P. [52 [298 Hanford, Matter 474]; 425, 322]; 430 157 P. Cal. [108 In Vaughan, re 353, 189 491 24 Cal. P. A.L.R. [209 legislative There is no therefore, requirement, the rules evidence applied Code of Procedure in dis Civil proceedings, barment although they frequently are invoked In Richardson, re hearing. Insure a fair (See 209 Cal. 492 Lacy In re 669]; P. Mo.App. 234 71 [288 S.W.2d [112 In Durant, re 594]; 497, 80 A. 10 Conn. 140 Ann.Cas. [67 539]; Wigmore 5 (3d 103.) 1940), 1388, p. Evidence ed. § There is no reason invoking them, however, are not necessary to that purpose. serve
Hearsay evidence is often excluded to insure that all evi
may
dence
(Englebretson
tested
cross-examination
Industrial
Com.,
etc.
421],
Wig
793
5
Cal.
see
[151
more
(3d
or
1940)
1362.)
Evidence
ed.
On three successive
§
trials
had the opportunity
to cross-examine the
against
witnesses
him
fully
and the record
that he
shows
exer
right
cised the
at the last trial so
there is little
likelihood
any significant
weakness in the
of the witnesses
In
Durant,
essentially
On
re
facts,
overlooked.
In
similar
Lacy,
Conn.
re
A.
539],
Ann.Cas.
616 part,
no strictly there is no need to adhere rules pri- made " marily govern jury trials. any
In requirements event 1870, the of section sub 8, division Procedure, Code of Civil which applicable contends is to this proceeding, have been met. imposes upon That section three conditions use of the testi mony given in a former action: the must witnesses be unavail able, parties the same, subject must be the and the matter proceedings the stipulated must be the same. It was that The State Bar need not establish that the unavail witnesses were able. prosecuted People Petitioner was in the name of the California, attorneys repre trial was conducted senting People. against In present proceeding the case presented by Bar, acting is The State as the arm of this court and also representing People of the State. reality parties are the same. Petitioner’s contention that subject matter is is not the same based the fact that this proceeding disbarment, is for whereas the earlier case however, was a criminal prosecution. Legislature, aware that a proceeding type disbarment different from is other action, hardly could preclude have intended to the use of the transcript proceeding for proceeding an earlier disbarment. The State Bar facts that prove seeks same public prosecutor sought proceed prove so that both ings actually (Fredericks do concern the same matter. Judah, 305]; Dungan, 604 108 Cal. P. McAlister v. [15 Cal.App. 185 requirement parties subject designed make matter be the same certain proceeding that the can cross-examination the first Co., (Lyon serve as well in the second. v. Rhode Island R.I. 252 893, 983]; Wigmore A. 1916A on Evi- L.R.A. fulfilled, (1940), 95.) dence p. purpose Since this § Moreover, transcript properly admitted. was free to in his own behalf introduce additional evidence right. but did not avail himself of this evidence, Petitioner even ad contends that missible, deputy does not establish that he to bribe the offered grand attorney. district McNeil was under indictment theft a Mrs. because of transactions securities with certain attorney in situ Bovell. Petitioner similar had served as time disagreement ations until had a over fees. Some McNeil, against prosecution after the commencement of this him, call- attempted to communicate however, petitioner as well litigation over the fee ing on McNeil’s at McNeil, while attorney in Bovell matter. as on his him, finally telegraphed petitioner unwilling see first August, 19th or 20th get in touch with him. On the he following McNeil, and in the week called on 1937, petitioner McNeil, petitioner, place took between several conferences *6 when petitioner, After the first visit petitioner’s and wife. Simpson, communi- McNeil allegedly McNeil offered bribe attorney’s dictaphone A was the district office. cated with posted listeners his base- placed in McNeil’s home and were ment. He against petitioner. principal
McNeil witness was August said, he first called on petitioner that when testified good and 20th, that “Mrs. Werner had some ideas 19th or good as to handle the Dis- that he had some ideas how to that Mrs. Werner was Attorney’s trict office . . and he said . very acquainted Simpson, Deputy well with Mr. the Chief there, Attorney $2,500 District and for about he could that get to, said, Dis- Simpson Mr. as he kick this case out of the Attorney’s Office; words, square up, trict in other he could necessary, naturally, satisfy but it be Mrs. Bovell. would petitioner McNeil testified that the same occasion ...” on stated “that he was satisfied he could take care of it Attorney’s $2,500, Office,by paying Simpson the District Mr. spreading money police department. and some around the following Petitioner and his wife called on McNeil the ...” Monday, petitioner up- and a after brief conversation went stairs. McNeil testified that meanwhile Mrs. Werner he and arrangements discussed the to made with the district at- be
torney’s office, and that anything “She said was to handled in the settlement of this matter in the District Attor- ney’s Office, handle, herself; get she would and if she didn’t money anything to handle the she not to do with would have it, any any because had cases time theretofore when kind, got got any money this if Pete hold of the she never it, and that in the Dis- she could have this case dismissed Attorney’s trict Chief paying Simpson, Office Bill Deputy Attorney, $2,500.” District McNeil then testified subsequently room and the petitioner returned to the upon possible arrangements conversation devolved with Mrs. drugstore, ont to Thereafter went Bovell. arrangements with the during his absence discussion of resumed, in- again Werner attorney’s district officewas Mrs. -arrange- money sisting handle the and direct the that she following again the three met Thursday ments. On when to the dispute there between and McNeil as settling required funds for the case. Petitioner testified up ‘I clear said, put up “. . will . he [McNeil] your Bergman Bovell, give up situation, Mrs. furniture and these two equity in the house and the Crenshaw City you tell me as soon as can come and houses Culver ” my case . . Peti- Attorney that the District will dismiss .’ you on replied, tioner “You want me to settle this ease McNeil it jawbone,” According “It can’t done.” but arranged house that Mrs. Werner visit McNeil’s then alone, dispute petitioner’s knowledge but there is some arrangement. event, Friday Mrs. afternoon arrangements Werner called and indicated that again had must handle completed, been warned she arrangements attorney’s the cash and the with the district Friday evening petitioner office. On Werner re- and Mrs. turned to McNeil’s house. After told arrangements for all Saturday, would be turned cash over *7 Werner, out, McNeil turned to Mrs. while was over an envelope supposedly containing Actually it cash. con- paper dollar tained some and one bills. Petitioner and Mrs. Werner left the were arrested as house. thus an of McNeil describes offer to bribe petitioner, acting through Mrs. Werner who re
peated times. the offer several The fraudulence of such an by Simpson’s testimony offer is revealed he did not know Werner, although once, Mrs. he had met her and that he was Angeles absent from Los at the time offer was made. any event, making offer, an of such whether or carry any out, not there intention to is was an act moral turpitude. impeached,
McNeil’s own for it petitioner, that he hostile shown that he had been con felony, victed of a and that he had made inconsistent various statements as to the time and substance of some conver testimony, however, sations described. His was corroborated employees posted of the district who had been *8 Wood’s notes Miss appeared Mrs. Werner alone. noon when in- Simpson would McNeil that Mrs. Werner told show McNeil charge Arterberry, deputy struct Mr. oe- following it; conversation case, dismiss to house, curred: McNeil: “The furniture a deed to those $10,000.” houses out there and Werner: “That Mrs. Bov- (Mrs. manager.)” shover Bovell’s McNeil: “The other to through slide D.A. office.” Mrs. “This one usually Werner: charges $2,500.” Wood
Miss testified that there conversation on Fri- day night petitioner, McNeil, between and Mrs. Werner as part. going follows: McNeil: “About the other I am to let money. I Helen handle the to you want be sure and be down going . . . up here 12th. This case is to come the 27th and I Attorney’s want it booted out of the District office. I suggest fingers this: thing. pie you Two a bad If going to Attorney’s are handle the it, you District end of Pete in, in, you want to come he but not comes unless want it. right Is that Pete?” Werner: “Yes.” McNeil: “Pete han- end; dles the other you Attorney’s handle the District office. only Pete tell you goes wrong, you does him if it are gummed up, one Mrs. “I Helen.” Werner: won’t gum up. I never gotten up any- have in mess there thing I have tried.” The of these witnesses shows Mrs. spoke approaching Simpson Werner and of a charge connection, in that petitioner and that aware that his approach wife was to office district attorney. fact that all Simpson references to occurred while
petitioner may was absent be attributed to Mrs. Werner’s funds, desire to retain control of the and to the likelihood that petitioner background, having wished to remain in the re- cently subjected been prosecution suspen- criminal and to proceedings by (See sion The State Werner v. The State Bar. Bar, 13 Cal.2d 666 There was evidence that experience had previous dictaphones, with and some the conversations were so low carried on tones Allen and Miss It Wood were unable to hear them. was Mrs. Werner who Simpson, claimed know and was therefore the logical person plan the approach his office. The fact that Mrs. proposed shortly Werner to bribe after- arrived McNeil, means free to establish .she suggests that she had been led believe object such contemplated negotiations. in the There is additional corroboration McNeil’s the testi- mony Mrs. Schapiro, litigation McNeil’s in the *9 trying fees, petitioner over told her when to communi- McNeil, I cate with “You know can have that case of the dismissed,” by
People against testimony McNeil and of Newmire, McNeil’s matter, Mr. the Bovell petitioner square stated to him that “he a position Mac,” the beef for “that yet it was not too late to fix the matter.”
It is contended by petitioner testimony McNeil, Wood, Allen and Miss relative to the statements made by hearsay Mrs. Werner petitioner. hearsay were as to rule, however, does not forbid the introduction of evidence that a statement has making been made when the state significant ment irrespective falsity of the truth or of its (Smith Whittier, content. v. 529]; Cal. see 6 Wigmore, op. supra, 1772, p. 191; cit. see eases col § lected at 10 Cal.Jur., 1036.) 288, p. Mrs. Werner’s declara § tions that she would see were not offered evidence as that she so, intended to do making but the of the offer lends credibility to testimony McNeil’s that petitioner made a simi lar offer.
People Werner,
v.
Petitioner accuracy notes, Miss Wood’s specifying omissions, various testimony symbols her “I” and “he” alike, were much and her dependence on the context of her memory notes and on her to determine their meaning. There is no showing, however, similarity that the symbols
in. led to error, substantial and was not essen- attempt everything. tial for Wood to record Miss testimony indicating petitioner’s guilt Much of the was contradicted Mrs. Werner. It was rea sonable, however, greater to attach credence to the witnesses, McNeil, by independent for it was corroborated than that of and his It is wife. reasonable suppose that the of the latter would influenced they charged the fact that were with a crime of which guilty. (Caldwell Weiner, already had been found *10 Judson, 1110]; 121, 203 543 P. Davis v. 159 Cal. Cal. [264 147]; Conner, 719, 128 167 Blanc v. Cal. 723 P. [113 [141 217].) unquestionably try-
The evidence shows was ing arrangement charge to for the dismissal of make some the contends, against however, McNeil. Petitioner that the evi- arrangement contemplated dence that the was restitu- shows Arterberry, tion to Mrs. a demonstration to Mr. Bovell and Attorney in Deputy charge matter, the District of the Bovell prosecution’s appears the of the case. It from weakness Miss from of other Wood’s notes and witnesses satisfying possibility conversation on the there was much convincing Mrs. and of her that she overstated the Bovell against McNeil, her case so that she would lose effectiveness Arterberry. Thus Wood’s notes principal witness for Miss said, “I put think we can her a,story show nothing this; to the that there is criminal about mind effect say got things her to certain that weren’t that Mr. Bovshover petitioner and Mrs. Werner Mrs. true.” The concern of over strong presentation and the of a case to Bovell’s attitude the evidence that Arterberry is not inconsistent with Simpson. bribing for proposed given reason to bribe Arterberry subject authority. Simpson was that was that when Mrs. was asked notes record Miss Wood’s Werner Ar- by McNeil, you [Simpson] “Do think he has control of however, “Completely.” Simpson, terberry?” replied, she hardly Arterberry prosecution direct to dismiss could Arterberry reason; otherwise, only not giving some without Bergman, ques- attorney, Mr. would Bovell and her but Mrs. adjustment Mrs. and an An Bovell tion the dismissal. Arterberry prosecution for the dismissal of the explanation to be were bribed. would be natural
623 go- not Werner was that Mrs. also Petitioner contends hire attor- going to another Simpson, but was ing to bribe attorney’s office; the district ney present case reference, peti- made implicit her this plan this person; and seeing a certain presence, to tioner’s $10,000 that was to be for plan accounts except for unaccounted given Werner, otherwise Mrs. support To used for bribe. testimony that was to be on the defended Mrs. Werner who argument, petitioner, testified represents now trial, and who criminal case to dis- attorney to present he was be the brought forward attorney’s trict This evidence office. the conflict between time on third trial and for the first Wood, Allen McNeil, it and Miss and the against petitioner by local committee resolved Board of Governors. findings of The State
It is well established that Bar, 14 given great weight. (Light Bar must State Cal. Bar, 12 212 35]; Cal.2d 2d 328 P.2d Furman v. State [83 [94 812]; 20 223 P.2d 12]; Bar, P.2d Hizar v. State Cal.2d [124 Bar, 100, 377]; Utz Petersen v. State Cal.2d P.2d Bar, v. State bur Cal.2d clearly den is on errone finding that the show Bar, supra, unsupported (Sizar ous or v. State in the record. *11 227; Bar, 870; at Petersen Moura v. State supra, v. State at Kennedy Bar, 13 Bar, 629]; Cal.2d P.2d v. State not sustained Cal.2d Petitioner has burden. this finding of the Board of
Petitioner contends that the The by Governors not within the notice. is the issues raised money petitioner notice to proposed pay stated a sum of to him in purpose bribing William for the of con People McNeil, petitioner nection the case with of and that attempted seeking to from him McNeil defraud obtain money a sum representation of on false that it would be the Simpson. peti used to bribe found that local committee tioner offer, made an as a means such and that it was intended defrauding of of finding of the Board Governors McNeil. a explicit, declaring petitioner plan
was less into entered $10,000 McNeil, with and his wife obtain from William “represented part McNeil amount would said that a of said arranging for purpose illegally the of for the
be utilized dis charge pending missal a criminal against McNeil. . . .” of finding language notice, follow the of While this does not the supported by evidence, it is the a amply plan and shows defraud an offer a public and to bribe The board officer. respondent, “that a of said part plan also found the sought wife, to obtain from William McNeil with grand intent to commit of portion theft a of said amount.” petitioner money Whether intended to the to bribe use public officer or whether he it for him intended secure self, involving he committed acts moral turpitude con for stitute a cause disbarment.
It therefore is the be disbarred ordered practice from the of in California that his name law be struck from roll attorneys, the of this order to ef- become thirty days fective after is filed.
Gibson, J.,C. Curtis, J., Edmonds, J., concurred. SHENK, J., Concurring Dissenting. I concur the ground order of transcript disbarment on of the testimony of witnesses on taken the trial of the for the criminal offense was admissible evidence the disbar- ment proceeding pursuant the stipulation entered into petitioner, supports and that the evidence the conclusion However, that disbarment should follow. I from dissent that, determination stipulation, assuming aside from the unavailability witnesses, of testimony of the transcript taken felony at the trial charge of the on a as to conviction, may which was no judgment there final in a proceeding against prove introduced disbarment him to commission acts of moral In turpitude. a ease con- viction, as the fact unnecessary would ground conviction my opinion disbarment. court in stipulation, approve the absence of a should not introduction in a proceeding evidence disbarment transcribed in the trial of witnesses taken an charge finally convicted, of which he was not to prove ease, acts of moral turpitude, much less in a such as this, question where determination not a neces- *12 sary ground for disbarment. I
Furthermore, disagreement am in in with the statement
625 requirements of section majority opinion that the the met, of Civil Procedure have been of Code subdivision “given in a former action between in that the majority relating matter.” The parties, to same .the same subject parties that and do not come to the conclusion (Cf. Aluminum Co. matter are the United States v. same. of 48.) opinion Am., 1 F.R.D. avoids [D.C.-N.Y.] necessity stating in essence that the for such a conclusion same; in the law proceedings effect is the disbarment require procedure strict to the rules of does not a adherence cases, and is no reason governing civil criminal there invoking necessary to insure for such rules unless are in hearing. recognized hearings fair This court has from proceedings disbarment there is a of freedom measure this court procedure applicable the rules of to the courts. But requirement attorney may has also to that an not adhered stripped privileges legal of except competent Richardson, 669], In In evidence. re Cal. pointed pro out that it is not so much a matter of rules, necessary cedural as it is the kind evidence that is deprive attorney right practice. and sufficient to an of his to In decision, in holding hearsay evidence is not com petent “Legal purpose, page for the said at 499: evi dence should required deprive duly alone admitted vitally right of the important prac and valuable profession, stigma tice his impose upon him the of dis only barment. The court can in such be asked review sufficiency legal view, consider the evidence. We are of the therefore, only legal evidence, as that term is understood among lawyers, should receive the Board the consideration of of Governors and of The Bar in exercise committees State disciplinary features of the Bar Act.” That view was followed with reliance on the Richardson case Masters v. Examiners, Cal.App.2d Board Dental 506 [59 827]. admissibility well understood test this state as trial, previous at a where witnesses taken cross-examination,
there has been is not the opportunity opinion court’s adequacy the cross-examination case, identity of sub- particular fairness but ject Bar, parties. matter and Néblett v. State 17 Cal.2d *13 340], noted that differences in in proceedings, parties, subject
nature of the and in the in previous matter inherent trial in a pro- disbarment ceeding, might greatly affect the interests and therefore the produced results cross-examination of the same witnesses. supporting minority cases majority gov- rules erning in admissibility previous taken trial unavailable, an exception when witnesses are to the excluding hearsay, page 179, rule in 21 are collected Ann.Cas. seq. majority rule, England, Canada, et 'in prevailing identity and in courts, requires our federal and state essential in parties, compre- of the matter issue and of the the latter hending in privies blood, law or in estate. The statement minority permitting opportunity the text of the rule identity (instead requiring parties cross-examination subject matter), admissibility—the as the test rule applied by present supported by the decision in the case—is states, the citation of a ease from each of two Connecticut Nevada. The decision adds from the of Missouri. one State majority may others, There to me that but it seems rule, by statute, adopted which has been this state should disregarded question. not determination Carter, J., concurred. notes Wood, secretary who took a Ruthe cellar, Miss in the Allen, Frank T. shorthand, and Mr. conversations longhand notes. investigator took some an who Wednesday confer- that at notes record Miss Wood’s “I said, want absent, Mrs. Werner ence, petitioner was while he will promise Erwin here to make you before we leave is everything that you agree on with talk me and will with we not you I want will do—and done, what Pete because Attorney’s District do to let him is have contact Simpson—very I Mr. go up I there. see ... wouldn’t office funds, having of the on control friend.” Werner insisted old this a money part that is saying, you “I pay want me Mrs. Wer- frame-up.” Allen’s notes likewise show Mr. very friend,” and old Simpson; “I stated, ner see Mr. will funds. that she insisted on control of the on re- petitioner’s Miss notes record further Wood’s I a talk “Helen and had to petitioner, turn McNeil said I am you are and you while were Helen cocksure out. .. house and fur- This that this matter will be settled. Bovell Bergman and $5,000. you pay I plus niture don’t care just arrive at Department. quick As as we can all Police don’t I hand it over—I necessary quicker what is and the can I am people three receipt—it want deal ... a between $5,000. willing another go split I willing to on that and am go trial lawyer go no ahead and hire There is use I Helen and ... will let and not know what the outcome is you details. I would be best work out the believe of what has thing her direction she can be worked out under at noon tomorrow you can come out mind ... If Helen the outside. another on tell that is all set and me you for one going “I to take Mrs. Werner: am not ...” “You McNeil: come thing my goes.” little end of it so far something like do, it is worth you can out and tell me what I do person one and can “I to see that.” Mrs. Werner: want I morning. know what want.” They won’t away at the time Mr. Wood and Allen were Miss Friday again after- conversation, took notes Thursday but