Opinion
June 29, 1929.
1. DISBARMENT: May. The word "may" used in Section 681, Revised Statutes 1919, declaring that "any attorney or counselor at law may be removed or suspended from practice in the courts of this State" for, etc., is mandatory.
2. MORAL TURPITUDE: Definition. Moral turpitude is an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow-man or to society in general, contrary to the accepted and customary rule of right and duty. It is an act done contrary to justice, honesty, modesty and good morals. The relation created by an engagement to marry is one of confidence and trust, and an abuse of that relation for the satisfaction of sexual desires is contrary to good morals and an act of baseness and depravity.
3. ATTORNEY: Disbarment: Moral Turpitude: Seduction: Conviction. Seduction under promise of marriage is a criminal offense involving moral turpitude, and under the statute (Sec. 686, R.S. 1919) a conviction, in a trial without error, of an attorney upon a charge of seduction under promise of marriage, is conclusive of his guilt of the criminal offense, and requires the court, upon a filing of a proper complaint and a verified copy of the record of his conviction, to enter judgment removing him from the right to practice law in the courts of this State; and particularly so, where at the time of the commission of the offense, he was not only an officer of the court, but the prosecuting attorney of a county.
Corpus Juris-Cyc. References: Statutes, 36 Cyc., p. 1161, n. 37.
Information to Disbar Attorney.
JUDGMENT OF DISBARMENT.
Robert L. Ward and Mercer Arnold for Committee on Grievances and Legal Ethics of Missouri Bar Association.
(1) Power to remove or suspend from practice any attorney at law in this State is conferred by Sec. 681, R.S. 1919, and this proceeding is brought under the provisions of the first clause thereof. (2) The procedure to be followed in any case brought under the provisions of the first clause of Sec. 681 is fixed by Sec. 686, R.S. 1919. (3) The defendant was convicted of the offense of seduction under promise of marriage, at the September, 1925, term of the Circuit Court of Douglas County, and a certified copy of that conviction has been filed with the complaint in this case. The defendant appealed to this court from that conviction and the conviction was affirmed. State v. Wallace, 316 Mo. 72. (4) The offense with which the defendant was charged and for which he was convicted, is an offense involving moral turpitude. Barnes v. Dist. Ct. App. Second Appellate Division (Cal.), 173 P. 1102; In re Shepard, 170 P. 443; In re O'Connell, 194 P. 1011; In re Henry, 99 P. 1055; In re Coffey, 56 P. 448: State ex rel. Mayes v. Mason, 43 P. 651; In re Kirby, 73 N.W. 92; In re Williams, 64 Okla. 16, 167 P. 1150; In re Hopkins, 103 P. 805. (5) The disbarment of an attorney under such circumstances is not an additional punishment and is not punitive in character. It is protective in character of the Bar and of the public. In re Shepard, 170 P. 446; In re Henry, 99 P. 1055; 6 C.J. 581, sec. 37. (6) The Statute of Limitations is not a defense in such a proceeding. 6 C.J. 601, sec. 61; In re Lowenthal, 78 Colo. 427, 21 P. 7; Peo v. Phipps, 261 Ill. 576, 104 N.E. 144; In re Smith, 73 Kan. 743, 85 P. 584; In re Elliott, 73 Kan. 151, 84 P. 750. The motive prompting the complaint is not important. In re Sizer Gardner, 306 Mo. 356, 365.
Barton Moberly for defendant.
(1) This is a statutory proceeding and upon the statute it must stand or fall. Secs. 681, 686, R.S. 1919. (2) "Criminal offense involving moral turpitude" as used in these statutes is a legislative recognition that some crimes do not involve "moral turpitude." (3) As the purpose of the statute is to remove the unworthy, and keep the bar up to the proper standard, a crime involving "moral turpitude" is one which would unfit an attorney for the performance of his duties as such. 25 R.C.L. 1012; 2 R.C.L. 1088; Re Vaughan, 24 A.L.R. 858, 862; Ex parte Finley, 81 S.E. 279. (4) Seduction under promise of marriage does not imply any question of honesty, integrity, fidelity or any other trait which would render one unfit to minister at the bar. Sec. 3259, R.S. 1919; State v. Brandenburg, 118 Mo. 181; State v. Mitchell, 229 Mo. 683, 695; State v. Shiflett, 273 S.W. 729; 35 Cyc. 1340 and note 23; 2 Thornton on Attorneys, 1263 et seq.; 24 R.C.L. 731; Underhill on Cr. Ev., sec. 585; 9 A.L.R. 202, note subhead "personal vice." (5) This court is not prevented from investigating or compelled to suspend or disbar under these statutes. Secs. 681, 686, R.S. 1919. (6) While the statute of limitation may not apply, yet a long lapse of time filled with exemplary service will justify a dismissal. Re Sherin, 40 L.R.A. (N.S.) 801, 804; Jewett v. Clopton, 15 Mo. App. 589; 6 C.J. 585. (7) We ask that the entire record in the criminal case be admitted in evidence and considered for what it is worth. They show that prosecutrix swore defendant told her he was divorced. This he denied, but if he said it under the circumstances she relates, then we admit this involves "moral turpitude." It is outside of the pleadings, but we waive that defect. It is outside the record proper in the criminal case, and this court is certainly not precluded as to it by that judgment. We therefore ask this court to go into that evidence, as triers of the fact, and determine for yourselves whether this man ever made that statement, deceived that girl in any way, or is guilty of the crime for which he has been punished. We insist that he is innocent and that his conviction was a miscarriage of justice.
On July 27, 1925, the Prosecuting Attorney of Greene County filed in the circuit court of said county an information charging J.D. Wallace, the then Prosecuting Attorney of Oregon County, with the crime of seduction under promise of marriage. The venue was changed to the Circuit Court of Douglas County, where, on September 25, 1925, he was convicted and sentenced to the penitentiary. The judgment was affirmed by this court December 20, 1926. On October 5, 1928, a member of the bar, in good standing, filed in this court a written and verified charge informing the court of said conviction, alleging that the crime involved moral turpitude, and praying that Wallace be removed from the practice of law in the courts of this State. A certified copy of the record of said conviction is attached to the information. The answer admitted the conviction, but denied that the crime involved moral turpitude. Other matters not material to the issues presented were therein alleged.
The relevant provisions of the statute follow:
"Sec. 681. Any attorney or counselor at law may be removed or suspended from practice in the courts of this State for any of the following reasons: First, if he be convicted of any criminal offense involving moral turpitude; second, if he unlawfully retain his client's money or if he is guilty of malpractice, fraud, deceit or misdemeanor whatsoever in his professional capacity. . . .
"Sec. 686. If the charge allege a conviction for any criminal offense involving moral turpitude, the court shall, on production of the record of such conviction, remove the attorney so convicted or suspend such attorney from practice for a limited time, according to the nature of the offense, as the court may deem just, and without further trial. . . ."
It will be noted that the word "may" is used in Section 681 in conferring on the courts the power to remove or suspend attorneys. The power conferred is for the protection of the bench, the bar and the public. For this reason the word "may" as used is mandatory.
By the terms of Section 686, the conviction of an attorney of a criminal offense involving moral turpitude is conclusive. Defendant argues that, even so, seduction under promise of marriage does not involve moral turpitude. The accepted definition follows:
"Moral turpitude is an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man; everything done contrary to justice, honesty, modesty and good morals." [5 Words Phrases (1st) p. 4580; 3 Words Phrases 2d p. 444; 5 Words Phrases 3d pp. 214, 215.]
The relation created by an engagement to marry is one of confidence and trust. An abuse of that relation for the satisfaction of sexual desires is not only contrary to good morals but is an act of baseness and depravity. We have no doubt that seduction under promise of marriage involves moral turpitude.
Defendant directs attention to a note in 9 A.L.R. 189. Cases are there reviewed holding that neither fornication, sexual immorality, visiting houses of ill-fame, nor the keeping of such a house, constitutes unprofessional conduct. Disbarment by reason of a conviction of crime is expressly excluded from the annotation. In this proceeding the defendant is not charged with unprofessional conduct, but with a conviction of crime involving moral turpitude.
On the facts found by the jury (State v. Wallace, 316 Mo. 72, 289 S.W. 871) much could be said of his conduct. We will spare ourselves the task. At the time of the commission of the offense he was an officer of the court and the prosecuting attorney of a county. The nature of the offense considered, we are of the opinion that he should no longer be permitted to enjoy the high privileges of an attorney at law. Judgment is ordered entered removing him from practice in the courts of this State.
All concur, except Atwood, J., not sitting.