Bar Ass'n of S.F. v. Sullivan

185 Cal. 621
CourtCalifornia Supreme Court
DecidedMay 5, 1921
DocketCrim. No. 2347
StatusPublished
Cited by2 cases

This text of 185 Cal. 621 (Bar Ass'n of S.F. v. Sullivan) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bar Ass'n of S.F. v. Sullivan, 185 Cal. 621 (Cal. 1921).

Opinions

ANGELLOTTI, C. J.

This is a proceeding instituted in this court for the disbarment of John J. Sullivan, an attorney and counselor, for conduct involving moral turpitude. Defendant was at all the times mentioned in the accusation one of the police judges of the city arid county of San Francisco, and all the charges against him are for acts and conduct on his part with relation to matters coming before him as such police judge, our law providing that an attorney and counselor may be removed “for the commission of any act involving moral turpitude, dishonesty or corruption, whether the same be committed in the course of his relations as an attorney or counselor at law, or otherwise.” (Code Civ. Proc., subd. 5, sec. 287.) Three separate, specific charges against the accused are made by the accusation. Each charge involves the most serious accusation that can be made against a judicial officer, viz., that of agreeing to receive and receiving money upon the corrupt understanding and agreement that his official conduct shall be thereby influenced. All of the charges were denied by the accused by verified answer filed herein. This court retained jurisdiction of the matter instead of transferring it to a district court of appeal, because of the seriousness of the charges and the official station of the accused. By order of the court, the evidence in support of and against the charges was taken by the chief justice, and the transcript of the evi[623]*623dence so taken has received the careful consideration of each member of the court.

No serious question of law is presented. It is conceded, of course, that by this accusation the accused was called upon to meet only the specific charges made against him therein, and that we are confined to those specific charges, viz., agreeing to receive and receiving money upon the corrupt understanding alleged, in the matters and proceedings specified in the accusation. No other misconduct is alleged in the accusation or included in the charges filed. On the other hand, it is clear that if it is satisfactorily shown that with regard to any of the proceedings specified in the accusation the accused either agreed to receive or received any money upon any such corrupt understanding as is alleged, the accusation should be held to be sustained and the accused disbarred. Some question is raised as to the degree of proof essential to warrant a conviction, i. e., whether the rule applicable in criminal prosecutions that guilt must be shown beyond all reasonable doubt obtains in such a proceeding as this. So far as appears, this precise question has never been determined by this court. A disbarment proceeding is not a prosecution for crime. In some states, however, it has been held that the charges must be proved beyond a reasonable doubt to warrant disbarment. In discussing a question of the sufficiency of an accusation this court has said: “This accusation is in the nature of a criminal .charge, and all intendments are in favor of the accused. The accusation is not sufficient if, all its statements being true, the accused could be innocent. (Matter of Haymond, 121 Cal. 385, 388, [53 Pac. 899, 900].) And again: “A judgment against the respondent will deprive him of personal and property rights. 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.” (Disbarment of Houghton, 67 Cal. 511, 517, [8 Pac. 52].) This, of course, means that something more than the mere preponderance of proof that will suffice in the ordinary civil cause is essential. [1] While we may concede that it may not be necessary, as in strictly criminal prosecutions, that guilt be established beyond all reasonable doubt, we are satisfied that a finding of guilt should be [624]*624made only upon, such proof as clearly and satisfactorily establishes guilt in the minds of the judges. [2] It seems, furthermore, clear that in such a proceeding all intendments should be in favor of innocence, and that where two or more equally reasonable inferences may be drawn from a fact shown, that inference leading to a conclusion of innocence should be accepted rather than one leading to a conclusion of guilt. (In re Application of Alameda County Bar Assn., 35 Cal. App. 534, 536, [170 Pac. 432].) Especially does this seem true where the charge is of acts constituting a felony involving the grossest of moral turpitude, and a conviction of which in a strictly criminal prosecution not only subjects the offender to imprisonment in the state prison, but also forever disqualifies him from holding any office in this state. (Pen. Code, sec. 98.)

The specific charges contained in the accusation are as follows:

First: That in two felony matters pending before him as a committing magistrate, each against one Bernardino Catterini, charged with assault with a deadly weapon with intent to commit murder, the accused, on or about January 12, 1918, did agree to receive and did receive $150 in money, “as a bribe, from one Peter P. McDonough, upon the corrupt understanding and agreement” between him and said McDonough that he, as such police judge, should thereby be corruptly and unlawfully influenced in his decision of said two eases, and that he was thereby corruptly and unlawfully influenced and dismissed said cases corruptly and unlawfully. This matter will hereinafter be referred to as the Catterini matter.
Second: That on or about September 23, 1918, while one Tony Spinelli was in custody on a charge of assault with intent to commit murder, the accused agreed to receive, and did receive, fifty dollars in money from one C. Vincent Rieeardi upon the corrupt understanding and agreement between himself and Rieeardi that his action and decision in the matter of the approval of a certain bail bond for five thousand dollars signed by Angelo Cosenza and Malina Cosenza then presented should thereby be corruptly influenced, and that he should in return for said money approve said bond and order the release of Spinelli from custody; and that he was thereby corruptly influenced to do [625]*625so, and did approve said bond and make said order for release. This matter will be hereafter referred to as the Spinelli matter.
Third: That in a misdemeanor prosecution against one Pastiango, who was charged with violating the provisions of an ordinance prohibiting lewd and lascivious acts, the accused, on or about November 28, 1919, agreed to receive, and did receive, forty dollars money as a bribe from said Riccardi, upon the corrupt and unlawful, agreement between them that in return for said money he would discharge said Pastiango from custody upon his own recognizance immediately after finding him guilty and sentencing him to ninety days’ imprisonment in the county jail, all of which he did. This matter will be hereinafter referred to as the Pastiango matter.

At the outset it should be stated that as to all the charges the only direct evidence of guilt of the accused is that of one C. Vincent Riccardi, who was at all the times referred to in this proceeding a duly admitted attorney and counselor at law. Probably no witness has ever appeared before a judicial tribunal who was shown to be less worthy of credit in the absence of substantial corroboration than this witness.

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185 Cal. 621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bar-assn-of-sf-v-sullivan-cal-1921.