The State of Florida ex rel. Benton C. Rude, Plaintiff, vs. William B. Young, Circuit Judge, Defendant, 30 Fla. 85

Easocy, C. J. : The charge which the relator was called upon to answer was that made against him in the indictment tiled November 6th, 1891. That this indictment was the basis of the proceeding to disbar him, is clearly shown by the disbarring order and the order denying a rehearing. The charge in the indictment is this: That one General Washington, on October 19th, 1891, was brought before Charles B. Bucknor, County Judge of St.

Johns county, to be dealt with according to law, on a warrant issued on the 12th day of the-same month by such judge, on an affidavit made by one Mary Murray, charging Washington with feloniously breaking and entering in the day time the dwelling house of said Mary, with intent to commit a felony, and that the said County Judge did then and there, by color of his office, unlawfully and corruptly dismiss, the said prosecution and discharge Washington from the custody of the law; and that the relator, Benton C.

Rude, was corruptly present, and did unlawfully and corruptly aid, assist and counsel to make the alleged dismissal of the prosecution and discharge of the. prisoner. Proof of the charge in (‘.ases of this character must be clear, both as to the act charged and as to the motive. In People ex rel. vs. Harvey, and People ex rel. vs.

Miller, 41 Ill. , 277, where Harvey was charged with abstracting from the court room in the progress of a cause in which he was an attorney a certain instruction which the court had refused to give the jury on. his application; and Miller was accused of abstracting a deposition taken in behalf of the defendant, in a case brought by Cook for Miller’s use, the doctrine announced was that the case must be clear and free-from doubt, not only as to the act charged, but also as to the motive, and it was said by the court: We are not satisfied in the case of Harvey that his withdrawal of the refused instruction was from a bad motive, as we do not see lio'w he and his client can profit by it; nor can we see why Miller should withdraw and conceal the deposition in Cook’s case for his use, since, on inspection of the deposition, a copy of which was among the papers, it had no great tendency to injure the plaintiff’s claim, or defeat a recovery by him.

The same doctrine is declared and enforced in Jackson vs.

State, 21 Texas, 688, where the court in discussing a vague and defective special verdict rendered upon a charge of abandoning the-defendant in a suit, and accepting a retainer from the plaintiff to prosecute the same cause, says, inter alia-.' “But the gravest omission is, that it does not find. the act to have been done with a corrupt motive or evil intent, or repel the supposition that it may have been from inadvertance, or some excusable or justifiable cause.” In the case of Houghton, 67 Cal., Gil, the charge was making certain false statements for the purpose of misleading and deceiving the court or justices, and the Supreme Court said: that the statement had not influenced the court in reaching the conclusion arrived at in the matter where the misrepresentation was made, did not relieve Houghton of tlfe charge of moral delinquency if the affidavit was wilfully false in that it was deliberately intended to produce a false impression; that the question was not whether the cófirt was actually misled by the statement, but was, is the statement false, made for the purpose of deceiving the court.

And subsequently the court observes: Unless we are clearly satisfied of respondent’s guilt, we ought not to remove or suspend him from the practice of his profession. As we are not so satisfied, we decline to strike his name from the roll.

The Supreme Court of Wisconsin in the case of In re O., 73 Wis., 602, remarks: “This court has held, in effect, that where the charges of professional misconduct upon which the accused is disbarred are such as would, if true, subject him to criminal prosecution, the same ‘should be established by clear and satisfactory evidence, and can not rest in doubtful and uncertain inferences.’ In re Orton, 54 Wis., 386.

But even where such charges are not of a criminal nature, yet we apprehend that, in order to justify disbarrment, they should be established by a preponderance of satisfactory evidence.” Weeks, in his Work on Attorneys, p. 175, (2nd ed.), says there must be “a clear preponderance of evidence;” and the Supreme Court of Illinois, in People ex rel. vs.

Barker, 56 Ill., 299, where the charge was the wilful disclosure of confidential facts confided to the defendant in his character as an attorney, and the testimony left it in doubt whether the defendant had learned the facts disclosed*while he was such attorney, or in transactions with the parties as their creditor: Held, that to overcome the express denial which had been made of the charges, there ought to be required more than a mere preponderance of evidence; that a charge so grave in its character, and so fatal in its consequences, ought certainly to be proved by what the law denominates a clear preponderance of •evidence; and such evidence was wanting: * * and that a man ought not to be denied the right to exercise the duties of his profession, and receive the emoluments thereof, except upon clear proof of wilful and corrupt professional misconduct.

See also In re Cobb, 84 Cal., 550; Walker vs. State, 4 W. Va., 749; Barker’s Case, 49 N. H., 195; Bryant’s Case, 24 N. H., (4 Foster), 149; State ex rel. vs. Chapman, 11 Ohio, 430; Bacon’s Abridgement, Attorney (H), 506. No court should, in the exercise of original jurisdiction, disbar an attorney upon a charge of this character, establishing, if proved, his unfitness morally to be entrusted with the responsibilities, of the office, unless the testimony sustains it clearly, both as to the act and the bad motive; and where there is conflict of testimony, there must be a clear preponderance against him.

Where an appellate or superior court is reviewing the proceedings of an inferior court, as here, it .should act with great care, and should not interfere with the conclusions of the inferior court upon the evidence, except where it is clear that the latter court, viewing its action in the light of the above rule, has decided erroneously, and there is a plain case of wrong and injustice to the attorney. State ex rel. vs Kirke, 12 Fla., 278; State ex rel. vs. Maxwell, 19 Fla., 31. By these rules the action of the Circuit Judge in this pase is to be tested.

No one of the witnesses testified that there had been any communication, direct or indirect, between the County Judge and Rude as to the charge against Washington, prior to Marry Murray’s going to Rude; on the contrary, both Rude and the County Judge deny that there has been any such communication even up to the dismissal of the case.

It is true that the latter part of Emma Hearn’s statement, that the County Judge “told Mary she had better go to Rude’s office and talk with him about the case, that Rude ■mauled, to see her,” implies that the County Judge was aware that Rude -wished to see her, but it does not justify the inference that the County Judge had gotten his information from Rude, and- not in some other manner; nor is it evidence against Rude, he being absent when the remark was made, that there had been any such communication, or that Rude had any desire to see Mary Murray.

It can not be denied that the conduct of the County Judge in leaving his office and going towards that of Rude, and waiting till Rude joined him and returning with him to the former office wras, in view of wdiat followed, calculated to arouse suspicion that there was -while they were thus together some communication between them as to the case, but no further inference can be legitimately drawn from such conduct than that the County Judge on leaving his office desired to see Rude about the case, and to take action towards a settlement of the case, or some action like that which he took on their reaching the County Judge’s office.

We can not go into the domain of uncertain and doubtful inferences and assume that conversation evidencing corruiit purposes took place between them. Rude must be tried upon evidence, and his conviction can not stand unless it is supported by facts cleariy proved and clearly showing a corrupt purpose.

There is of course no doubt that the case against Washington was a criminal charge, and not an action of replevin ; still, one question is whether, looking at the entire testimony, it can be said that the Judge was justified in holding that it was clearly proved that Rude knew he was dealing with a criminal, and not a civil, case. It is true that the deputy sheriff says that Rude asked him to let him, Riide, see the warrant, and that he “ showed ” it to Rude.

This statement, in view of Rude’s denial that he knew it was a criminal prosecution, does not prove 'that Rude ever read the warrant or was aware of its contents. The deputy sheriff does not state that Rude knew the nature of the warrant, or that Rude knew it was a criminal writ, nor does the deputy explain what he meant by saying that he “ showed ” the warrant to Rude.

Adverse intendments can not be made in support of a conviction of such serious consequences as this is, and we are without proof that the warrant was ever in the hands of Rude before the dismissal of the case, or that the deputy meant to imply by his language anything more than that he exhibited the warrant to Bude, without parting with its possession. The first information which the record shows Bude had of the case was from Sample, who went to Bude’s office and told him that his brother-in-law had a suit before the Countjr Judge, and wanted Bude to attend to it. Bude asked him what it was about.

His reply was that Mary Murray claimed that Washington had some old furniture of hers, worth five or six dollars, and that the sheriff had been to Washington to get it, and the case was about to come off. After he had gone, Mary Murray came and told him that the County Judge had sent her to him to see if he could not settle her case with Washington. Bude asked her what she claimed, and how she knew Washington had it.

Her reply was : Flatirons, jars, etc., worth six dollars, and that two women had seen Washington at the place where they were the day she missed them, and a man had seen him with the things ; and Bude told her the value was too small “ to law about,” and she had better settle it.

After she had gone, Washington came with the deputy sheriff, and applied to Bude to go to the County Judge’s to represent him, and Bude having refused to go, as Washington did not have five dollars to pay him as a fee, Washington started out, and as he did so, Bude asked him if he had any goods of Mary’s, and he replied, no ; and then Bude enquired of him if he knew what she claimed, or how she claimed he got them, and to this Washington made a similar reply.

These statements of Rude as to Ms interviews with the parties named only indicate that Mary claimed that Washington had certain property which belonged to her, and that Washington denied having it; rather this, than that Washington admitted the possessioh of certain property which Mary claimed, and that he denied her title to the same. And that this seems to have been Rude’s understanding, is indicated by his questions to Mary and to Washington.

The natural inference is that Rude understood Mary to claim that Washington had her flat-irons, jars, etc., and that Washington denied the taking or having possession of any of Mary’s property; and the remark of Rude: “Now, Washington has paid you for your goods and they are his, and you can go along home,” made to Mary when he paid her the six dollars, indicates that his conclusion then was that the settlement was for goods of Mary’s which she claimed Washington had, and that by such settlement they had become Washington’s.

If this was all, we should feel justified in holding that the Judge had decided erroneously iri determining that Rude was aware that he was settling a criminal prosecution, but when we see that Rude’s motion after he paid the costs was, that the defendant be “discharged,” and upon the ground that no one appeared against him, and remember the presence of the deputy sheriff with the prisoner at Rude’s office, which is not denied to have been known by Rude, we think there was affirmative evidence sustaining the conclusion that Rude finally- understood himself to be engaged in the settlement of a criminal case.

In coming to this conclusion, we of course adopt the view of the Circuit Judge, that Rude, on account of his near-sightedness, did not see that Washington was in hand-cuffs while at his office. But does the simple fact that the relator has compromised a criminal case, necessarily imply that he has done so corruptly or with a bad motive ? Illegal acts are not necessarily corrupt.

We must look to and be controlled by the circumstances of each particular case, in forming our judgment as to what motive characterized it; and in the matter before us if the circumstances disclosed by the testimony are such as it can be said of them that they could not have made it clear that the motive of the relator was corrupt; or, in other words, if the evidence is such as naturally and reasonably must have rendered the question of his having such a motive, one of doubt, the dismissal of the relator from the bar should not be sustained.

The circumstances of this case must be found in the evidence; we can not go beyond it' for them. They are, that the County Judge having looked into the case, talked with the parties and the witnesses enough to see that there was nothing in the charge, and that it could not be sustained, advised her to settle it and drop the matter, and told her she had better go to the relator and have him see if she and Washington coiild not settle it.

Acting upon this advice, she goes tojjRude, and tells him that the County Judge lias sent lier there for the purpose indicated, and she having explained her case to him, as shown in a previous part of this opinion, he tells her the value is too small to go to law about, and that she had better settle it, or, and she says, “had better drop it.” This she would not agree to do, and .went back to the County Judge’s office.

Rude’s advice to Washington on his coming there and going away without securing his services, was similar to that he had given Mary Murray; it was, that ‘ ‘the thing was too small to law about; find out what she claims, and settle,” and, further, on Washington’s saying that Sample had been trying- to settle with her, “go and settle it up, and don’t bother me; if you do, I shall charge you nothing.” Considering that no previous acquaintance upon the part of Rude with the case, or with Sample, Washington, or Mary Murray, is shown, but, on the contrary, is denied by Rude, and that no interest in the case or connection with any of the parties is made to appear, and no collusion or previous communication between Rude and the County Judge is proved, there is nothing- in the action of Rude mp to this point to indicate a fraudulent or corrupt purpose.

Having-been approached by the complainant or prosecutrix as having been sent to him by the County Judge to see if he could not settle the controversy between her and Washington, the conclusion of Rude’s mind, in the absence of circumstances to establish the contrary, must naturally have been that the case, though criminal in its character, was frivolous, and ought to be settled; and this although Rude did not know of the investigation which had been made of it by the County Judge; and, so far as we are informed by the record before us, there is nothing to indicate that it was not of that character.

It can not be assumed that it was not of this character; no one has said that it was not, nor has any one said that the County Judge did not make the investigation which he claims to have made, or that the conversations between Rude and Mary, and Sample and Washington respectively, were not as Rude stated them to be. Mary Murray’s statement as-to her interview with Rude is not inconsistent with Rude’s account of it. He seems to have been impressed from the first with the idea that the case was one that should be settled, and to have acted with this view.

There was no secrecy or effort at concealment in his conduct, but, on the contrary, his action, even when making the settlement, is open, and is shown to have been understood by those who were present. It does not appear that the desire for gain played any

part in his action; instead of this, he not only stated to Washington that he would charge no fee if it was settled, but even used the very money which Sample had paid him as a fee for Washington. No previous, or other transaction of this kind, or of any shady character upon his part, or between him and the County Judge is hinted at; nor is there any evidence of any other conduct clouding his reputation as-an attorney; on the contrary, when he asked time to. prove his character and reputation at the North, and St.

Augustine, in this State, the place of the inquiry, he was told that it was unnecessary, and assured that-he would be given the benefit of the presumption of having borne a good character.. Not only is the irregular action which the testimony imputes to him isolated, and open, and not shown to have been inspired by the hope of pecuniary gain, but to the contrary there is an entire absence of any circumstance' which suggests a hope of benefit'to himself.

That the County Judge was willing to permit the costs of the case to be paid by Washington, and to accept the payment of his own fees from Washington when_he knew that the charge could not be sustained, is an unfavorable circumstance. Standing alone or unexplained, it is an evidence of corrupt conduct upon the part of the County Judge, in that it would indicate that he was dismissing a criminal charge against a defendant upon a consideration paid by the defendant. It should never be done.

If an examining court knows there is no case against the defendant,, the case, should never be dismissed at the cost of the defendant. To the extent that the court has gone at the time of the dismissal, the court should look to the State, or whoever else under the law may be liable for the costs, and innocent defendants should not suffer by the payment of costs, nor should the reputation of courts be impugned by the suspicion which such payment naturally creates, nor should attorneys consent that their clients shall pay costs except as a consequence of their conviction or pleading- guilty.

Though this is all true, yet it is equally true that the dismissal of a single criminal charge against a defendant at his cost by an examining-court is not conclusive of the corrupt motive of the court; it does not establish as a matter of lato, either that the court was acting-in the interest of and to shield the accused, or for the furtherance of a special or general purpose to obstruct or defeat the prosecution of crime, or that an attorney who may have been party to it was likewise corrupt.

If the County Judge, in dismissing this case, was not doing so for the purpose of shielding the accused, or of defeating- criminal justice, and was not induced to do so by the payment of the costs by the defendant, but consented to the dismissal because he had investigated the case, as stated by him, and found there was nothing- in it, and believed it ought to be dismissed, then the mere fact that he permitted the defendant to pay the costs which had accrued, and accepted those payable to himself, is not sufficient to establish, and can not be held to establish, fraud or corruption.

Unquestionably it was improper practice, and should not be tolerated, but it does not prove fraud or a corrupt intent in him or the other officer whose fees were paid at the same time ; and the same maybe said of the County Judge having frequently done the same thing in good faith before, where he had found there was no merit in the charge. It can not be correctly said that this course adds anything to the officer’s purse, for the State was liable for all costs had the examination been proceeded in, even if a discharge of the defendant had resulted.

It is not shown that anything ever passed between the County Judge and the defendant as to his case, or at all, or that it was ever possible thar there could have been any secret interview between them. His dealings on this line were with the complainant, and he advised her to settle it and to drop it; but it is not claimed by Mary Murray, or any one that he ever offered her any inducement to do so.

It is not shown that the circumstances of Washington’s getting the property claimed by Mary Murray, or of her losing possession thereof, were such as would produce the impression that the case was one which the County Judge should not have advised the settlement of ; in fact no showing as to what those circumstances were, is made.

From the time Ilude was told by Mary Murray that the County Judge had sent her to him to see if she could settle her case with Washington, Rude seems to have acted in- reference to this suggestion; and that he did so openly without any effort at concealment, is unquestionable ; and so it is that the record fails to show that he made any mistake, in so far as the real circumstances of Washington’s getting the property are concerned, in acting on the suggestion, or that he was influenced by any promise or hope of reward or benefit.

Looking at all the testimony we think it was entirely insufficient to justify a judge in holding, in a proceeding of this character, that the motive of Rude was corrupt.

In the face of a professional life of nearly thirty years -without any stain upon it, in the absence of any effort at concealment and of all evidence of any of the considerations which usually influence men to do wrong, it is impossible to believe that the relator, or any one, would have undertaken to effect the settlement of a criminal charge of such indefinite and inconsequential character that none of its facts have been mentioned in all the testimony detailed in this record, for the mere purpose of corruptly relieving from prosecution a person hitherto unknown, and of no concern to him, or of defeating the criminal justice of-the State.

That a mistake has been made by him, and that there are circumstances which tend to indicate that he has done himself injustice in saying that he did not understand the charge to be one of a criminal nature, we do not deny, but that his conduct was criminal or corrupt has not been shown. His conduct is to be attributed rather to a misapprehension or inattention to his duty, than to a criminal intent. We can not ignore all the testimony in this record which is favorable to the defendant, although the bulk of it may come from the lips of the relator and County Judge.

Mary Murray does not deny what either of them says as to his interview with her. Sample and Washington were not called upon to contradict, if they could, what Rude says passed between him and them. The witnesses against Washington, whoever they may have been, whom the County Judge says he •examined, as he also says of Mary,-were not summoned to test the truthfulness of that statement. The truthfulness and effect of the account which Rude and the County Judge have thus given can not be overcome and set aside by presumptions or inferences. The case of State vs. McClaugherty, 33 W.

Va., 250, is not in conflict, with any of the c-o'nc-lusions reached in this opinion. A peremptory writ is awarded, and it will be so ordered.