« AnteriorContinuar »
gave way, and he fell, receiving injuries | self. In Channon v. Sanford Co. 70 Conn. from which he died. The contention of 573, 41 L. R. A. 200, 66 Am. St. Rep. 133, counsel for the appellants is that, by the 40 Atl. 462, relied upon by counsel for apuncontradicted evidence,-in fact, the ad- pellant where a servant engaged in decomission of the plaintiff of the existence of rating a church was injured by the falling the custom as above stated, there was no of a scaffold constructed by a third person, duty devolving upon the defendants to who was an independent contractor, under furnish the scaffold upon which the de- the peculiar facts of that case it was held ceased worked, but that that duty rested that the duty of seeing that the scaffold upon the brick masons; and that if, by was safe did not rest upon the employer; reason of the negligent construction of the and it has been so held in other cases cited same, deceased lost his life, the remedy of by counsel for appellants. But we are unthe plaintiff below was against them, and able to see how it can be said here as an ornot against defendants. With this conten- iginal proposition, that the defendants tion we cannot agree. We have examined were not under the legal duty of furnishthe testimony contained in the record with ing the scaffolding upon which the deceased care, and are unable to discover anything was to work. Suppose we leave out of conin the agreement of counsel at the trial, or sideration the proof or stipulation as to in the evidence, tending to prove that the the prevailing custom in the city of Chideceased's contract of employment was cago, and consider the case as though the made with reference to the custom among deceased had been employed (as he was) builders, or that the deceased waived or by the defendants to set stone upon the relinquished any legal right which he had building by the day, there being no agreeto expect of his employers a safe and securement as to who should furnish the scaffold; place or scaffold upon which to work. Con- could it be doubted that, by reason of that ceding to the fullest extent that the cus- employment, the legal duty devolved upon tom existed, and that it was known to exist the master (that is, the defendants) to by the deceased at the time he was em- provide the scaffolding, and see that it was ployed and during the time he was engaged safe and secure? We think not. Then in the work, in the absence of all proof the question in the case must be, on the to that effect we are unable to see how it first proposition, Does the proof in this can be said that such knowledge in any case show, so as to establish it as a matter way amounted to a waiver of his right, of law, that they had been relieved of that under the law, to hold his employers re- duty? Unless it can be so held, then clearsponsible for the safety of the scaffold. ly the court properly refused to withdraw The fact that he knew that it was built the case from the jury. On the contrary, by the brick masons in pursuance of a as we have already said, to our minds duty which they owed the stone setters there is nothing in the case fairly tending under the existing custom in no way estopped to show that the deceased in any way him form saying to his employers: "As waived his right in that regard, or that debetween you, as master, and myself, as em- fendants were relieved from the legal obployee, the law imposes upon you the duty ligation resting upon them. We are satof providing me with a sufficient scaffold; isfied no error was committed in refusing and, although another party may have to give peremptory instruction to find for constructed it in pursuance of a duty which the defendants. it owed you, still it was your duty to me to see that it was securely and safely built." Chicago & A. R. Co. v. Maroney, 170 Ill. 520, 62 Am. St. Rep. 396, 48 N. E. 953, Citing Hess v. Rosenthal, 160 Ill. 621, 43 N. E. 743, and Chicago, B. & Q. R. Co. v. Avery, 109 Ill. 314. We are not unmindful of the fact that cases arise in which it is not the duty of the employer to furnish a safe place for his employee to work, as where the duty to see that the place or scaffolding on which the labor is to be performed devolves upon the workman himself, and not upon the employer. If a party should be employed to paint a house, there being no agreement as to who should furnish the scaffolding, the duty would doubtless fall upon the painter him
In view of the instructions given at the request of the defendants, and in view of what we have already said, the court properly refused to give those asked by the defendants of which complaint is now made. One of these instructions will suffice to point out what we regard as a fatal objection to each of them. The one which perhaps most nearly approaches the law is as follows: "The court instructs the jury that, if you find, from the evidence, that there was a general custom prevailing among mason and stone-setting contractors in the city of Chicago at the time of the injury to said Thomas Rawle, whereby scaffolding in the erection of buildings upon which mason and stone-setting contractors were employed was to be furnished by
the brick-mason contractor, and not by the
defendants to furnish scaffolding for the
Perceiving no error in the record, the judgment of the Appellate Court will be affirmed.
PEOPLE of the State of Illinois ex rel.
Leslie A. GILMORE.
People ex rel. Johnson v. George, 186 Ill. 122, 57 N. E. 804; People ex rel. Johnson v. Schintz, 181 Ill. 574, 54 N. E. 1011; People ex rel. Deneen v. Hahn, 197 Ill. 137, 64 N. E. 342; People v. Hill, 182 Ill. 425, 55 N. E. 542; People ex rel. Chiperfield v. Comstock, 176 Ill. 192, 52 N. E. 67; Re McCarthy, 42 Mich. 71, 51 N. W. 693; Walker v. Com. 8 Bush, 86; 2 Am. & Eng. Enc. Law, 2d ed. p. 304; Ex parte Wall, 107 U. S. 265-280, 27 L. ed. 552-558, 2 Sup. Ct. Rep. 569.
Mr. Francis M. Burwash, for spondent:
Former conviction does not require disbarment.
People ex rel. Deneen v. Coleman, 210 Ill. 79, 71 N. E. 693.
The Missouri record of conviction is null Petition for rehearing denied December 5, and void on account of the fraud in its af1901. firmance.
since its issuance, the plaintiff has been guilty of professional misconduct evincing such lack of personal integrity and professional honor as to establish that he is unworthy to be allowed to hold it.
NOTE. For other cases in this series as to disbarment of attorneys, see Fairfield County Bar ex rel. Fessenden v. Taylor, 13 L. R. A. 767, and note; State ex rel. Fowler v. Finley, 18 L. R. A. 401; People ex rel. Atty. Gen. v. MacCabe, 19 L. R. A. 231; Re Kirby, 39 L. R. A. 856; Re Lentz, 50 L. R. A. 415; and Rc Evans, 53 L. R. A. 952.
(February 21, 1905.)
The conviction of an attorney of a felony or misdemeanor, involving want of integrity, is sufficient to justify the disbarment of such attorney.
Wonderly v. Lafayette County, 150 Mo. 635, 45 L. R. A. 386, 73 Am. St. Rep. 474, 51 S. W. 745.
Pardon blots out a crime and all its consequences. It reaches both the punishment prescribed for the offense and the guilt of the offender. It obliterates, in legal contemplation, the offense itself.
Ex parte Garland, 4 Wall. 333, 18 L. ed. 366; Carlisle v. United States, 16 Wall. 147, 21 L. ed. 426; Sanborn v. Kimball, 64 Me. 140; Knapp v. Thomas, 39 Ohio St. 377, 48 Am. Rep. 462; Hildreth v. Heath, 1 Ill. App.
The judgment of conviction, being met by a pardon, ceases to be evidence; hence, there is no proof of the first count, and it should be disregarded.
Scott v. State, 6 Tex. Civ. App. 343, 25 S. W. 337.
Mere failure to disclose possession within any limit of time does not constitute an element of the crime of embezzlement.
State v. Reilly, Mo. App. 392; McElroy v. People, 202 Ill. 473, 66 N. E. 1058.
Where great length of time has elapsed between the alleged misconduct and the in
stitution of the proceedings, the law will | On the 28th day of March, 1892, the judg
The crime of which the respondent was
People ex rel. Noyes v. Allison, 68 Ill. 151; Re Lentz, 65 N. J. L. 134, 50 L. R. A. 415, 46 Atl. 761.
The courts do not look with favor on applications of this character where the party alleged to have been injured by the misconduct of the attorney is not complaining.
People ex rel. Wright v. Lamborn, 2 Ill. 123; People ex rel. Noyes v. Allison, 68 Ill. 151.
Where the misconduct does not relate to a professional engagement, courts will usually not interfere unless the conduct is
People ex rel. Hughes v. Appleton, 105 Ill. 474, 44 Am. Rep. 812.
When the charges are denied by respondent, or the act done is given a proper or harmless motive, a mere preponderance of the evidence as to either act or motive is not sufficient.
People ex rel. Miller v. Harvey, 41 Ill. 277: People ex rel. Shufeldt v. Barker, 56 Ill. 299; State ex rel. Fowler v. Finley, 30 Fla. 325, 18 L. R. A. 404, 11 So. 674; State ex rel. Johnson v. Gebhardt, 87 Mo. App. 542.
This is a petition filed originally in this court for the disbarment of the respondent, Leslie A. Gilmore. The respondent filed his answer, and the cause was referred to a master to take and report the proofs, and the proofs have been heard and reported, and the respective parties have filed their briefs. The testimony discloses that in the year 1889 the respondent was a resident of Kansas City, Jackson county, Missouri, and was a member of the bar of that state and engaged in the practice of his profession there. At the September term, 1890, of the criminal court of Jackson county, an indictment was returned against him charging him with the crime of embezzling certain moneys belonging to one Mrs. Eva Abbott, which came into his hands in his capacity as the attorney of said Mrs. Abbott. At the December term, 1890, of the said criminal court of Jackson county Missouri, he was placed on trial before the court and jury, and was adjudged to be guilty of the offense charged in the indictment, and was convicted and sentenced to be imprisoned in the penitentiary of the state of Missouri for the period of five years. He prosecuted an appeal to the supreme court of the state of Missouri, and, under the statutes of that state, was permitted to go at liberty during the pendency of the appeal. He absented himself from the state of Missouri, and went to Colorado.
pardon. His concealment of these facts was a fraud on the circuit court. He practised a further fraud upon the appellate court and upon this court by presenting that certificate of good moral character so deceitfully and fraudulently obtained by him. Had thi court been advised, when the respondent asked an order admitting him to the bar. that he had but only about two months before obtained his release from the penitentiary of Missouri. tentiary of the state of Missouri, where he had been imprisoned, because adjudged to be guilty of the crime of embezzlement of funds which had been intrusted to him by a client, he would not have been admitted as a member of the bar of the state. He obtained his certificate of admission by deceit fully and falsely inducing this court to believe that he enjoyed and possessed a good moral character, knowing at the same time that he was purposely concealing a fact which would demonstrate that his assertionment in the penitentiary of that state, had was untrue. To permit him to longer hold been pardoned, and had obtained license to that certificate of admission would be to al practise the profession of law in this state, low him to enjoy the fruits of his own fraud without having made known to the courts and deceit. of this state that he had been so convicted of a felonious offense in the sister state. But in that case it appeared from he petition a period of thirteen years had elapsed between the time of the conviction and the time of the application for admission to the bar of this state, and the answer averred that for eight years of that time just preceding the application the respondent had been a resident of the state of Illinois; that he had during the eight years during which he had lived in Illinois before the license issued to him, and during the years since receiving the license, conducted himself as an honorable, upright, and law-abiding citizen, and had thereby established and enjoyed, and was entitled to enjoy, the reputation of a man of good moral character. In this state of the pleadings the relator moved that judgment of disbarment be entered on the averments of the petition and answer thereto. This motion we declined to grant, for the reason that it admitted the averments of the answer to be true, and, if true, it appeared from such averments that the respondent had repented of the wrong he had done, had reformed his evil ways, and had by years of good conduct and honorable practices restored himself to public confidence as an honorable and worthy man before he sought admission to the bar of this state. The case of this respondent and that of Coleman are alike in the fact that neither of them advised the court that he had been convicted of a crime which affected his moral character, and we now distinctly say that such an omission cannot, in any instance, be regarded otherwise than as the reprehensible concealment
the state which he had prepared and which he inclosed with the money. This letter contained some statements of alleged fact, and a recommendation of the writer that the respondent should be pardoned. Mrs. Abbott signed the letter and received the money, but the pardon was not granted. About eight months thereafter the respondent was extradited from Illinois, and placed in the peni
The respondent, in his answer, asserts that he was innocent of any actual wrongdoing in the transaction with his client in Missouri, and that his conviction was not justified by the proofs, and was wrongful. The respondent and the relator have presented to us the testimony of the witnesses heard on the trial of the charge of embezzlement, as preserved in the record of that proceeding. Without conceding that any reason exists for declining to give full faith and credit to the adjudications of the courts of Missouri, we are unwilling to say that this testimony demonstrates that the respondent was innocent of the charge of which he was convicted. He was a member of the bar of Missouri, and was employed by Mrs. Abbott as her attorney to collect an indebtedness due to her. He collected $500 from her debtor on the 22d day of October, 1889. He saw her within three days thereafter, and saw and consulted with her and advised her frequently during the nine months which intervened before an accusation of the crime was lodged against him, and did not at any time inform her that he had collected any money for her, but, on the contrary, led her to believe that he had not received any money for her, until after she had caused a warrant to issue against him. He did not repay any of the money until after the affirmance by the supreme court of the judgment of conviction. While in the city of Chicago, a few months before he was seized as a fugitive from justice, he sent $240.75 to a friend in Kansas City, Missouri, to be paid to Mrs. Abbott on condition that she would sign a letter to the governor of
It is true that in People ex rel. Deneen v. Coleman, 210 Ill. 79, 71 N. E. 693, we decline to accept the view urged upon us by the relator that the respondent ought to be disbarred on the charge, made in the petition and admitted in the answer, that the respondent had, previous to his application for admission to the bar of this state, been convicted in the courts of Indiana of a felonious offense involving moral turpitude, had served a portion of a term of imprison
of a fact which it is the duty of an appli- | ìars, more definitely and particularly of cant for admission to the bar to disclose. the nature of the accusation against him, In the Coleman Case, acting, as we did, up- and (2) that the state's attorney, in his adon the averments of the petition and the dress to the jury, improperly referred to the answer, it appeared to us that Coleman had, failure of the respondent to testify as a before applying to this court for license, by witness on the hearing of the cause. Reyears of upright and honorable life, re- spondent alleges, in his answer, that after covered his standing as an honorable and the reversal of the judgment of conviction moral man; and it also further appeared a nolle prosequi was entered in the cause from the answer in his case that, in the by the state's attorney. years that had elapsed after his admission to the bar in Illinois, and before the petition for his disbarment had been filed, his life as a lawyer and as a citizen had been such as to demonstrate that his reformation had been complete and permanent and that he had maintained a good moral character. In these latter respects the case of this respondent is entirely unlike that of Coleman. He did not, after being released from further punishment in the penitentiary, devote any of the years of his life to the upbuilding of a moral character and to the obliteration of the bad moral reputation which had attached to him by reason of his conviction of a crime which involved a want of personal and professional integrity. On the contrary, he came almost directly from the doors of the penitentiary in Missouri to the presence of the courts in Illinois, and deceitfully and fraudulently imposed himself upon our courts as a man of good moral character. And, furthermore, the record in this cause discloses that he has, since receiving his license to practise law from this court, persisted in his evil and wicked ways. It appears from the testimony produced in this record that in 1899,-some three years after his admission to the bar of this state,an indictment was returned against him by the grand jury of Carroll county, in this state, charging him and others with having entered into a criminal conspiracy to obtain the money of two citizens of that county by false pretenses and by means and use of the confidence game. On a trial before a jury in the circuit court of Carroll county the respondent and three others, who were in dicted as coconspirators with him, were adjudged to be guilty of the crime charged, and the respondent and two other of his coconspirators were sentenced to be imprisoned in the penitentiary of this state at Joliet. This conviction was reviewed on a writ of error issued out of the appellate court for the second district, and the judgment of conviction was reversed for two reasons, as
appears in the opinion of the appellate court, reported in 87 Ill. App. 128, to which respondent, in his answer, especially refers for the information of the court. The two grounds of reversal were, (1) the refusal of the trial court to require the people to apprise the respondent, by a bill of particu
We have, at the suggestion of the respondent, read the opinion in that case, and have also read the testimony taken by the respective parties on the reference made under this petition. The nature of the charges of which the respondent was convicted in the trial court in Carroll county was that the two prosecuting witnesses, who lived in Carroll county, and three other persons who resided in Chicago, had engaged in a scheme for tapping telegraph wires running to a pool room in Chicago and intercepting and delaying reports of the racing of horses, in order that they might win money by betting on the winning horses, and that the three Chicago conspirators conceived a plan of extorting money from their Carroll county confederates in wire tapping by inducing them to believe that two of the Chicago confederates had been arrested on a charge of tapping telegraph wires, and that the instruments and appliances for tapping the wires had been seized by the officers, and that, unless a large sum of money should be provided by the Carroll county confederates, to be used in corrupting the officers to surrender the possession of these instruments and appliances for tapping the wires, all of the confederates would be in danger of exposure, arrest, and conviction. It was contended by the prosecution that the respondent, in his assumed capacity as an attorney, was an actor in the conspiracy to obtain the money of the Carroll county confederates in the wire-tapping scheme, and was to share in the moneys that might thus be extorted from the Carroll county men. One George C. Mastin, a witness on the trial before the jury in Carroll county, testified that he was an attorney at law in Chicago, and was consulted by a friend of the Carroll county men; that the Carroll county men drawn a draft for $2,100 in response to a telephone message from the respondent that that amount would be required; that he (the witness) induced the holder of the draft to deliver it to him, and then called upon the respondent to ascertain the facts as to the alleged necessity of the payment of that sum of money by his clients; that the respondent told him that the story that two of the Chicago conspirators had been "placed in the central station was a fake;"