Imágenes de páginas
PDF
EPUB

THE ALBANY LAW JOURNAL.

* * *

other cause than misconduct in his professional mitted a criminal offense the court is bound to capacity was recently considered at great length strike him off the roll. by the Supreme Court of Judicature in Eng-sidered in the case of Re a Solicitor; Ex parte That point was conland, sitting as a court of appeal, before Lord The Incorporated Law Society, 61 L. T. Rep. Esher, master of the rolls, and Lindley and (N. S.) 842. It was argued that it followed as a Lopes, L. JJ. 69 L. T. Rep. 522. The case was an appeal by Mr. G. E. Weare, a solicitor, Pollock, B., and Manisty, J., held that although matter of course that he must be struck off, but against an order of a divisional court (Wills his being convicted of a crime prima facie, made and Charles, JJ.), directing his name to be struck off the roll, on the ground that he had him liable to be struck off the roll, yet the court been convicted, under section 13 of the Crimihad a discretion and must inquire into what nal Law Amendment Act of 1885, of being a victed, and the court may punish him to a less kind of a crime it is of which he has been conparty to the continued use of a house of which extent than if he had not been so punished. he was landlord, as a brothel. The charge I have no doubt that the court might say: was heard before the magistrates in the Bristol 'Well, under these circumstances, we shall do police court, and they convicted the solicitor and sentenced him to three months' imprison- no more than admonish him and make him pay no more than admonish him,' or 6 we shall do ment with hard labor. On appeal, the recorder the costs of the application;' or the court affirmed the conviction, but reduced the sent- might suspend him or strike him off the roll. ence to a fine of £20. The Incorporated Law The discretion of the court in each particular Society afterward applied to the Queen's Bench case is absolute. Therefore I think the law as to Division to strike the solicitor off the roll, and the power of the court is quite clear. the order was made. The appellant appeared The Divisional Court having heard the case, in person and declared that the conviction was not justified by the evidence. He argued that has been convicted of a criminal offense, and has come to the conclusion that this solicitor the jurisdiction of the court to order a solicitor of a criminal offense of such a disgraceful kind, to be stricken off the roll was confined to cases of professional misconduct, and said that this struck off the roll. that they are of opinion that he ought to be was the first case of a solicitor being struck off strike him off the roll, unless the court considers The court is not bound to for any other cause. On the other hand, the that he has been convicted of a criminal offense, counsel for the Incorporated Law Society main- and of such a personally disgraceful criminal tained that the jurisdiction extends to any mis- offense that he ought not to remain a member conduct. The case was regarded of so much of a strictly honorable profession. Now, what interest and importance that all three of the is the offense? The offense is being a party to judges in the Court of Appeal delivered opinions. the use of a house belonging to him as a brothel. The principal cases cited were Rex v. Souther- Is it or is it not personally disgraceful? Try it ton, 6 East, 126; Re Hawdone, 9 Dowl. 970; in this way: Ought any respectable solicitor to Re Wallace, L. Rep., 1 P. C. 283; Re King, 8 be called upon to enter into that intimate interQ. B. Rep. 129; Re Blake, 3 Ell. & Ell. 34; Re Hill, 18 L. T. Rep. (N. S.) 564; L. Rep., 3 Q. solicitors even though they are acting for oppocourse with him which is necessary between two B. 543; Ex parte Brownsall, 2 Cowp. 829. site parties? In my opinion no other solicitor Lord Esher, M. R., said: "All these cases seem ought to be called upon to enter into such reto me to show that it is not necessary that the lations with a person who has so conducted offense (a criminal offense, at all events) should himself. be committed in the character of an attorney; personally disgraceful offense. The conviction I think he has been convicted of a the question is, whether it is such an offense as makes it unfit that he should remain a member act. is prima facie a reason why the court should of this strictly honorable profession. Where a man has been convicted of a criminal offense, that prima facie, at all events, does make him a person unfit to be a member of an honorable profession. But it does not follow as a matter of course that wherever a solicitor has com

The disgracefulness of the crime in this him off the roll. I know how terrible that is. case is such that the court is bound to strike for the rest of his life, but it does not necessarily It may prevent him from acting as a solicitor do so. He is struck off the roll; but if, after an honorable career of such a length as to con

vince the court that there has been a perfect and actual repentance, and that he is no longer guilty of any thing disgraceful, but that his conduct is honorable, the court, upon such evidence, will have the right and the power to restore him to the profession. His case is not hopeless therefore, but at present he must be struck off the roll, and this appeal must be dismissed."

Lord Justice Lindley said: "The question is whether a man is a fit and proper person to remain on the roll of solicitors and practice as such? Now, asking that question, how can we say that a person who acts as this man is proved to have acted, is a fit and proper person to remain on the roll of solicitors? What respectable solicitor could, without loss of selfrespect, knowing the facts, meet him in business? And what right have we to impose upon respectable solicitors the duty of meeting him in business? I have no hesitation whatever in saying that the decision of the Divisional Court was correct, and that we cannot alter it. *** I quite agree with what has fallen from the master of the rolls about restoration to the roll. That is quite another matter."

per

The full report of the case occupies five pages of the London Law Times of December 16, but we have quoted enough to make clear the grounds upon which the final judgment of the Appellate Court was placed.

Henry W. Paine, the eminent Boston lawyer, who died on the last Tuesday in December, was a man whose long and useful life, whose honors and rich success, were wholly at variance with the modern theory of what they should have been after the manner in which he passed his early years. Had he, as a young man, been dissipated and reckless, his subsequent success and his living to the age of eighty-four years would have excited far less comment. Mr. Paine, during all his early life, abstained almost wholly from exercise. Not only was the gymnasium unknown to him, but even sports, indoors as well as out of doors, and recreation of all kinds were ignored by him. No vacation broke his unremitting toil, none of that out-of-door labor, which is supposed to have made life livable before the modern gymnasium was invented, gave him physical weariness at night. Says the Boston Transcript of him: "Though living near woods abounding in game, he never learned the use of firearms, and though the river flowed by his father's door, he never learned to swim. He never rowed a boat, he never skated, he never played base-ball, or what was then its equivalent. He never played a game of checkers, dominoes or cards." At college he studied day and night, and yet for fifty years after his admission to the bar he was able to give the law his undivided allegiance, and for twenty years of that time he was almost without a rival, probably arguing, says the Transcript, more cases to juries, both upon the civil and criminal sides of the court, than any other member of the bar. To be sure, he had a strong constitution and a vigorous physique, but few would be willing to admit nowadays that such a strain as this could be continued, even for a little time. Should any young man now devote himself so utterly to work the world would run away from him, frightened at the spectre of an early death. Or the world would shut him up as crazy; or take

*

Lord Justice Lopes said: "I am reluctantly compelled to come to the conclusion that the solicitor in question in this case has shown himself not to be a fit and proper person to be intrusted with the responsibilities and duties which belong to the profession which he has hitherto followed. It is fectly clear however that the mere fact that the person has been convicted of a criminal offense does not make it imperative on the court to strike him off the roll. There are criminal offenses and criminal offenses. For instance, one can imagine an assault of such a disgraceful character that it would make it incumbent on the court to strike the solicitor off the roll. On the other hand, one can imagine an assault arising to some extent out of a quarrel of a much less serious character, where in all probability the court would not think it its duty to interfere. Again, the same observation would arise with regard to indictments for libel. There are libels and libels, some of which would compel the court to act under the plenary power it possesses, others where the court would hesi-him from his work and make him play. There tate before it so acted.

is a good deal in happiness. So long as one is

happy in his work, it is not likely to hurt him. It is anxiety and " grinding" that break men down. We suppose that Paine was so devoted to the law that he would have been unhappy in any other occupation. His quick success soon removed the necessity for such ceaseless labor; and it must be that, devoted to his profession, he found all the pleasures of travel in threading the devious ways of its papers; that to surmount a legal difficulty gave him the same healthy thrill of pleasure that most persons find in climbing a mountain or a tree; that the hurling of arguments was to him as the tossing of dumbbells; and that the skilful use of legal phrases was like the playing for stakes of checkers, dominoes and cards. He was gifted above most men in that productive labor and pleasure were so synonymous that he never had to choose, and "Dame Duty" was the lady whom he loved. Thus his case proves nothing probably for those who would cry down athletics, for not one man in fifty thousand is constituted as he was.

[ocr errors]
[ocr errors]

Mr. Paine once went to one of the interior towns of Maine, where a boy was on trial for

[ocr errors][merged small]

In the case of The People v. Welch, reported in full in this number of the ALBANY LAW JOURNAL, the General Term of the Supreme Court in the First Department of this State has unanimously affirmed the same doctrine of concurrent State and Federal jurisdiction that was held by Judge Lacombe of the United States Circuit Court for the Southern District of New York, when the prisoner Welch, after his conviction in the General Sessions, was brought up on a writ of habeas corpus. In re Loney, 134 U. S. 375, it was said by Mr. Justice Gray that there are cases (the most familiar of which are those of making and uttering counterfeit money) "in which the same act may be a violation of the laws of the State as well as of the

[ocr errors]

laws of the United States, and be punishable by the judiciary of either." That portion of section 711 of the United States Revised Statarson. He had no counsel, and Mr. Paine was utes upon which the prisoner relied, and upon assigned by the court to take charge of his case. He discovered, after a brief interview with the which much discussion as to the conflict beboy, that he was half-witted. The jury how- tween State and Federal jurisdiction has turned, ever was composed of good, solid country provides that "the jurisdiction vested in the farmers, who owned barns such as the defend-courts of the United States in the cases and ant was alleged to have set on fire, and in spite of the boy's evident weakness of intellect, they brought in a verdict of guilty. The presiding justice turned to Mr. Paine, and remarked: "Have you any motion to make?" Mr. Paine arose, and in his dry and weighty manner answered: "No, your honor; I believe I have secured for this idiot boy all that the laws of Maine and the Constitution of the United States allow -a trial by his peers."

[blocks in formation]

proceedings hereinafter mentioned, shall be exclusive of the courts of the several States: First, of all crimes and offenses cognizable under the authority of the United States." The crimes cognizable under the authority of the United States are those only which Federal statutes declare to be such, and this section would seem to apply only to offenses peculiarly and primarily against the United States. Under the authorities its scope does not extend so far as to preclude a concurrent State indictment, or its trial, for the same act which may constitute a crime of the same or a different name under the State law. Certainly, the concurrent jurisdiction of the Federal and State courts in criminal matters has been frequently recognized by the Supreme Court of the United States, and even, as above shown, in cases involving the making and uttering of counterfeit money. Judge Lacombe however, while taking this view of the subject, based his decision, dismissing

A

NEW YORK SUPREME COURT, GENERAL TERM, FIRST
DEPARTMENT, DECEMBER, 1893.

PEOPLE V. WELCH.

The jurisdiction of the criminal courts of the city and county of New York includes all offenses committed on any part of the Hudson river southward of the northern boundary of the city of New York.

the writ, on the rule announced in several de- MANSLAUGHTER COMMITTED IN NAVIGAcisions of the Supreme Court of the United TION OF A VESSEL-CONCURRENT JURISDICTION OF UNITED STATES AND STATE States, that, unless some special reasons exist, COURTS. the United States courts will not interfere by habeas corpus to immediately decide whether a prisoner's rights under the Federal Constitution and statutes are being infringed by a criminal proceeding in a State court, but will defer the consideration of such question until an appeal is taken from the highest court of the State to the Supreme Court of the United States. special reason for immediate interference would be for instance, that the case involved "the authority and operations of the general government, or the obligations of this country to, or its relations with, foreign nations." Ex parte Royall, 117 U. S. 516. But in ordinary cases the rule of non-interference by habeas corpus, though nominally involving an exercise of discretion, will have all the force of uniform, positive law. The reasons for said rule are thus expressed in Cook v. Hart, 146 U. S. 183.

Where defendant, a pilot licensed under the laws of the United States, was charged by an indictment with the offense of manslaughter in the second degree, committed by him on such waters in the navigation of a vessel. Held, that section 5344 of the Revised Statutes of the United States did not vest exclusive jurisdiction of such offense in the courts of the United States, but only gave them concurrent jurisdiction with the State courts, and that the act of the de fendant constituted an offense against the laws of the State of New York as well as against the laws of the United States.

APPEAL from a judgment of conviction rendered against the appellant by the Court of General Sessions of the Peace, in and for the city and county of New York, on the 28th day of October, 1891, adjudging him guilty of manslaughter in the second degree. Lorenzo Semple, for appellant.

Delancey Nicoll and Henry B. B. Stapler, for respondents.

PARKER, J. The defendant was convicted of manslaughter in the second degree, under au indictment charging him with willfully and feloniously propelling and running a tug boat into a yacht, and "did thereby willfully and feloniously cast the said Jenkins from the said yacht into the river * * * and by the means aforesaid, wilfully and feloniously did kill and slay the said Jenkins." The form in which the offense was charged by the indictment would constitute manslaughter in the second degree, under either the second or third subdivisions of section 193 of the Penal Code. The section reads as follows:

"Such homicide is manslaughter in the second degree when committed without a design to effect death. "(1.) By a person committing or attempting to commit a trespass or other invasion of a private right, either of the person killed or of another not amounting to a crime, or,

"While the Federal courts have the power and may discharge the accused in advance of his trial, if he is restrained of his liberty in violation of the Federal Constitution or laws, they are not bound to exercise such power even after a State court has finally acted upon the case, but may, in their discretion, require the accused to sue out his writ of error from the highest court of the State, or even from the Supreme Court of the United States. As was said in Robb v. Connolly, III U. S. 624, 637: 'Upon the State courts, equally with the courts of the Union, rests the obligation to guard, enforce and protect every right granted or secured by the Constitution of the United States and the laws made in pursuance thereof, whenever those rights are involved in any suit or proceeding before them.' We are unable to see in this case any such special circumstances as were suggested in the case of Ex parte Royall as rendering it proper for a Federal court to interpose before the trial of the case in the State court. While the power to issue writs of habeas corpus to State courts which are proceedings in disregard of rights secured by the Constitution and laws of the United States may exist, the practice of exercising such power before the question has been raised or determined in the State court is one which ought not to be encouraged. The party charged waives no defect of jurisdiction by submitting to a trial of his case upon the merits, and we think that comity demands that the State courts, under whose process he is held, and which are, equally with the Federal courts, charged with the duty of protecting the accused in the enjoy-ble in the courts of criminal jurisdiction held in and

ment of his constitutional rights, should be appealed to in the first instance. Should such rights be denied, his remedy in the Federal courts will remain unimpaired.”

66

(2.) In the heat of passion, but not by dangerous weapon or by the use of means either cruel or unusual,

or,

(3.) By an act, procurement or culpable negligence of any person, which, according to the provisions of this chapter, does not constitute the crime of murder in the first or second degree, nor manslaughter in the first degree."

The place where the crime was committed was within the territory described in section 1442 of the Consolidation Act, which provides that: "The whole of the Hudson river southward of the northern boundary of the city of New York, and the whole of the bay between Staten Island and Long Island, shall be so far as deemed within the jurisdiction of the city and county of New York, that all offenses shall be cogniza

for the said city and county."

Section 1 of the same act also provides that the boundaries of the said city and county include all of the "Hudson river" within the boundaries of the

State. By section 51 of the Penal Code it is provided that "the Court of General Sessions of the city and county of New York, and the Court of Sessions of the county of Kings, have jurisdiction to try, determine and punish all crimes cognizable within their respective counties, including crimes punishable with death and imprisonment in the State prison for life." And as the court named in the section last quoted was one in which the defendant was tried and convicted, it follows that the defendant was convicted by a court having jurisdiction of all crimes cognizable by the courts of this State within the territory in which the offense charged was committed, which offense is declared by the statute of the State to be manslaughter in the second degree.

lish the crime charged in the indictment. As the indictment charges an offense against the statutes of the State, it follows that the act of the defendant violated both the laws of the United States and of the State of New York. But appellant insists that, as the act constituted a crime against the laws of the United States, the courts of the State of New York have been ousted of jurisdiction to try the offender, notwithstanding the same act constitutes, and for forty-six years before the insertion of section 711 in the United States Revised Statutes constituted, an offense against the statutes of the State of New York, and prior to that time was recognized as a criminal offense under the common law, constituting the crime of manslaughter.

Section 5344, above quoted, is found in title 70 of the Revised Statutes of the United States, entitled “Crimes," and among the introductory and general

which reads as follows: "Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the law thereof."

But the appellant, not denying the general jurisdiction of the court to punish offenders for crimes committed on the Hudson river within the boundaries of the city and county of New York, contends that de-provisions of that title may be found section 5328, fen lant's act furnishes an exception to the rule, be cause it constitutes an offense against the laws of the United States, and therefore jurisdiction to punish for it belongs to the courts of the United States. That while, prior to the recent revision of the statutes of the United States, the offense might have been punishable by the courts of the State, because Congress had not at that time reserved to the United States courts exclusive jurisdiction of all offenses which could be tried and determined under the authority of the United States, such authority was taken away from the State courts by section 711, incorporated at the time of such revision, by which exclusive jurisdiction was vested in the courts of the United States of all crimes cognizable under the authority of the United States.

The facts relied upon by the appellant to present this question were established upon the trial, and appear in the record as follows:

"That the defendant, Thomas A. Welch, was duly licensed to act as a second class pilot on steam vessels by the United States Local Board of Inspectors of Steam Vessels for the district of New York. That while said license was in full force and effect, and while said defendant was engaged in the actual performance of his duties as a pilot under said license, a collision occurred June 15, 1891, on the Hudson river, between the steam towboat 'F. W. Devoe,' upon which the defendant was employed, and which was at the time under the defendant's control and management as pilot, and the sloop yacht Amelia,' which collision was caused by the willful misconduct, negligence and inattention to his duties on said F. W. Devoe' of the said defendant, Thomas A. Welch. The said collision, caused by the wilful misconduct, negligence and inattention of the said Thomas A. Welch, resulted in the sinking of the yacht Amelia' and in the destruction of the life of Francis Jenkins, who was at the time on board of the yacht Amelia,' by drowning."

[ocr errors]

·

[merged small][ocr errors][merged small][merged small]

In the same title then in which the act of defendant is declared to be a crime against the laws of the United States, it is provided that nothing in the act shall have the effect to impair or take away the jurisdiction of State courts under the laws of the State. How is this provision to be given any effect, unless it be construed to mean that where an act, which is declared to be an offense against the laws of the United States by any of the provisions of that title, also constitutes an offense against the laws of the State within the territorial jurisdiction of which the act was committed, the jurisdiction of the State courts to try the offender for the violation of its laws shall not in any wise be impaired or held to be taken away?

Prior to such enactment the general rule on the subject of concurrent jurisdiction in cases where the act constituted an offense against both the laws of the United States and the laws of the State where the act was committed, was as stated in Holt ou Concurrent Jurisdiction, page 26: "In such cases the offender may be punished either in the United States court or in the State court having jurisdiction; but the proceeding in either tribunal must be based exclusively on the law of the sovereignty under which the tribunal sits; that is, the proceeding in the Federal court must be based on the Federal law and those in the State court on the State law."

Following that rule, the several sections under consideration are capable of harmonious construction. Section 711 operates to give to the Federal courts exclusive jurisdiction to try offenders charged with violations of the Federal law, thereby necessarily depriving the State courts from taking jurisdiction thereunder, while section 5328 was intended to assure the State courts that Congress had no intention to interfere with their right to try the same offender, providing the act charged against him constituted a violation of the statutes of the State. We have asserted that the rule as quoted from "Holt on Concurrent Jurisdiction" is well established, and some reference to the authorities upon which that assertion is based will now be made. In Fox v. State of Ohio, 5 How. 432, it was held that a State may punish the offense of uttering or passing false coin, and in the case of the United States v. Marigold, 9 How. 560, that a Federal court, in the proper exercise of its authority, may punish the same act as an offense against the United States. In the latter case the court said: "With the view of avoiding conflict between the State and Federal jurisdictions, this court, in the case of Fox v. State of Ohio, have taken care to point out that the same act might, as to its character and tendencies, and the consequences it involved, constitute an offense against both the State and Federal governments, and might draw to its commission the

« AnteriorContinuar »