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(146 N.E.) ing.

Age is not of itself a disqualifica-I [2, 3] When a case has been heard upon tion, but it excites vigilance to see if it is ac- oral testimony, it is not for this court to companied with incapacity. Disease is not say what witnesses the trial court should itself a disqualification, but all infirmities believe; and if the evidence is conflicting, awaken caution to see if mental capacity is im- his decision will not be reversed unless it paired or gone." Whitney v. Twombly, 136 lass. 145; " Becker v. Becker, 238 Mass. 362, Mass. 183, 51 N. E. 976; Colbert v. Moore,

is plainly wrong. Dickinson v. Todd, 172 130 N. E. 843.

185 Mass. 227, 70 N. E. 42; Swan v. Justices Testimony was offered which, if believed, of the Superior Court, 222 Mass. 542, 547, would have required the court to find that 111 N. E. 386; Townsend v. Townsend, 243 Mrs. Davidson was of sound mind on Sunday Mass. 401, 137 N. E. 350; Drew v. Drew

There was evidence morning, November 18, when she signed the (Mass.) 144 N. E. 763. will offered for probate.

to support the finding that Mrs. Davidson But other testi

was not of sound and disposing mind on mony tended to prove that about 142 hours before this will was signed, Mrs. Davidson Sunday, November 18, when she signed the did not recognize a person with whom she that the decision of the court was plainly

will offered for probate, and we cannot say had lived for a long time and who had mar

wrong.
ried a young lady brought up by her; that

Decree affirmed.
her eyes were then sort of glassy looking or
stary, different from what the witness had
ever seen before; that her mouth was open
and she was gasping for breath or panting;
that she did not look as if she were able

BAR ASS'N OF CITY OF BOSTON V.

SLEEPER
to talk or see; that when the witness asked
her if she recognized him she just turned (Supreme Judicial Court of Massachusetts.
her head over "looking for some place, like

Suffolk. Jan. 30, 1925.)
she was gone." This witness testified that
he was about the place all of Sunday morn-

1. Attorney and client Omw57-Findings of fact

on review of disbarment proceedings stand ing and saw no change in her condition.

if supported by direct testimony or inference Evidence also was introduced that early in from evidence. the evening of the day on which the will of

Proceedings for disbarment of attorney at fered for probate was signed, Mrs. Davidson law is at law, and when presented for review did not recognize her grandchildren or her on findings of fact, findings stand when wardaughter-in-law; that she did not from ranted by direct testimony or as inferences then until her death, on November 21, speak from evidence. coherently in their presence; and that dur- 2. Attorney and client w54_Denial of reing a part of that time, while they were with quest for ruling that evidence did not show her, she was moaning, muttering and delir- deceit, malpractice, or other gross misconious. A neurologist, called by the contest- duct, held proper. ants, testified in substance that a person of Evidence that attorney told members of the age of the testatrix, suffering from lobar state police that he had been consulted by clipneumonia, would be in a more or less stu- ent about request to go to certain room in hoporous mental state, cloudy in consciousness, tel at named time to meet two lawyers and latwith a distinctly lowered appreciation of her er, when charges of extortion against lawyers surroundings and a lack of interest therein; denied making such statement, and denied it in

were being investigated by Bar Association he that there would be no period of continuous disbarment proceeding, held to justify refusal of appreciation of her surroundings; that she his request for ruling that there was no eviwould not be likely to understand the sig. dence to show deceit, malpractice, or other nificance of ordinary affairs Saturday night gross misconduct. and would be worse Sunday morning; and that the disease is progressive. Basing his 3. Attorney and client Cw38—Want of common

honesty is adequate ground for disbarment. opinion upon the testimony of witnesses, he said she would not be likely to understand

Common honesty is essential for every the significance of ordinary atfairs and could lawyer, and want of it constitutes adequate

ground for disbarment. not appreciate any condition such as is involved in making a will, either on Saturday 4. Attorney and client (54—Request for rulnight or Sunday morning, and that her mind

ing that attorney had been faithful to all his was in a stuporous condition thus preclud

duties to client and as attorney properly reing any concentrated effort to comprehend or

fused. appreciate her acts or to understand their

In disbarment proceedings, under evidence significance; that "initiative and memory

of respondent's statements to police officers

investigating and comprehension of a situation would be charges had been made, his denial of making

other lawyers against whom gone"; that in old persons suffering from statement both before investigating committee pneumonia there is a quick decline and a and in disbarment proceeding held to justify quick lapse into indifference and stupor. | refusal of request for ruling that there was no

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

AMA

evidence to support finding other than that he 13. New trialm99–Denial of motion for had been faithful to his duties to his client new trial for newly discovered evidence held and as attorney and counselor.

without error. 5. Attorney and client Om54–Exclusive prov.

Where trial justice may have thought that ince of trial judge to follow own convictions alleged newly discovered evidence was availa

ble at all times, and it was merely corroborain believing or discrediting testimony.

tive of evidence given at trial, there was no In disbarment proceeding, it was exclu

error in denying motion for new trial on that sive province of trial judge to follow his own

ground. convictions in believing testimony of respond-. ent and discrediting contrary testimony.

14. New trial om99—Disposition of motion for

new trial commonly rests in discretion. 6. Appeal and error om994(3)-Conclusions of trial judge in passing on testimony not sub

Disposition of motion for new trial, beject to review.

cause of newly discovered evidence, commonly

rests in sound judicial discretion. Where trial justice acted only within bounds of duty in passing on credibility of Exceptions from Supreme Judicial Court, witnesses, his conclusions are not subject to Suffolk County, review.

Petition by the Bar Association of the City 7. Attorney and client Om54Denial of request of Boston against Alvah G. Sleeper. Re

for ruling that disbarment was not method of spondent was disbarred for perjury in diseliciting information sought held proper.

barment trial, and he excepts. Exceptions Where sole issue as to whether respond sustained, and petition referred to single jusent's professional conduct had been so repre

tice. hensible as to require disbarment, there was no error in refusing his request for ruling that Respondent requested the following rules: petition for disbarment was not a proper meth

Upon all the evidence in the case there is od to obtain information as to his relation with

nothing to show deceit, malpractice, or other certain client.

gross misconduct upon the part of the re8. Attorney and client 54—Finding that at. spondent; that there is no evidence to sup

torney, in giving testimony, was knowingly port any finding other than that the reguilty of perjury held without error.

spondent has been faithful to all his duties to Notwithstanding charge of perjury at hear his client and as an attorney and counselor of ing was not included among charges set forth this court; that the petition for disbarment in petition for removal, there was no error

was not a proper method to obtain the inforin trial justice's finding that respondent, in mation sought, the respondent should have giving testimony at trial, knowingly failed to been informed by legal process of the informatell truth and was guilty of perjury.

tion sought, and, in case of dispute as to the

duty of disclosure, the court should have de9. Attorney and client 49, 54-Gross mis- termined that issue, and the information, if

conduct in open court may justify suspension proper, should bave been imparted under the or removal, but attorney should be heard protection of the court. thereon.

F. W. Mansfield, of Boston, for petitioner. Gross and outrageous conduct in open court by attorney may be such as to justify sum

W. B. Grant, W. P. Dyer, and F. M. Ryder, mary proceedings for suspension or removal, all of Boston, for respondent. but he should be heard thereon before he is condemned.

RUGG, C. J. This is a petition for the

disbarment of the respondent, an attorney 10. Constitutional law Om 275(1) Attorney

at law. cannot be deprived of right to practice ex.

One of the charges set forth in cept by proceedings complying with due pro. the petition for disbarment was that the

respondent had told separately to Arthur Right of an attorney to practice his pro- E. Keating and to William H. Proctor, fession is both liberty and property, of which both members of the state police, that one he cannot be deprived except by proceedings of the respondent's clients, Hollis H. Huncomplying with due process.

newell by name, had represented that he 11. Attorney and client ww52-Even though already had paid on three different occa

disbarment was based on perjury in disbar- sions a large sum of money by way of blackment trial, attorney should have opportunity mail to certain lawyers; that an appointto be heard thereon.

ment had been made for him to go to a desBefore disbarment was entered on ground ignated room in a Boston hotel, where he that attorney was guilty of perjury in disbar- | feared that a further demand would be made ment trial, there should have been charge of on account of the same matter; that the rethat specific nature and opportunity to be spondent advised Hunnewell to go pursuant heard.

to the appointment; that the respondent fol. 12. Attorney and client Cw39_Perjury by at lowed shortly after and found in the room torney is ground for disbarment.

three lawyers, who were named to Keating Commission of perjury by an attorney at and to Proctor, and that after a brief conlaw is sufficient ground for disbarment. i versation all left the room and no money was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

cess.

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(146 N.E.) paid, and that the respondent voluntarily ap-y they are warranted by direct testimony or as peared before a committee of the Boston Bar inferences from all the evidence. The only Association to make a statement concerning matter for us to decide, even upon a full rethis affair, and deliberately lied about it by port of the evidence, is whether the general denying that he had told to Keating and or special findings made can be sustained on Proctor the matters and things repeated by any reasonable view of the case as presented them. There were other charges connected to the trial court. Randall, Petitioner, 11 with the same transaction, but it is not nec- Allen, 472; Boston Bar Association v. Greenessary to state them because the findings hood, 168 Mass. 169, 182, 46 N. E. 568; Boscenter about this one.

ton Bar Association v. Casey, 227 Mass, 46, The case was heard at length before a sin- 51, 116 N. E. 541; Moss v. old. Colony Trust gle justice. He filed "findings of fact, rul.Co., 246 Mass. 139, 143, 144, 140 N. E. 803. ings, and order" as follows:

[2] There was no error of law in denying "I find as follows:

the respondent's request, to the effect that "(1) Alvah G. Sleeper made to Arthur E. there was nothing in the evidence to show Keating and William H. Proctor, in substance, deceit, malpractice, or other gross misconduct the statements set forth in the petition for on his part. It appears to be conceded that his disbarment. This finding is based not only in the spring or summer of 1920, a commiton the testimony of Keating and Proctor, but tee of the Boston Bar Association had under upon that of other witnesses. It is supported

consideration and investigation charges by the conduct of Sleeper.

“(2) Sleeper, at the hearing before the sub-against two Boston attorneys, to the effect committee of the grievance committee of the that they had conspired to extort money Boston Bar Association, finally denied that he from Hollis H. Hunnewell by threats of crimever made the statements.

inal prosecution. There seems also to be no "(3) While upon the witness stand before me dispute about the fact that Keating and Procas a witness in his own behalf be denied mak-tor, members of the state police, each aping them. **(4) In giving such testimony, he knowingly peared before that committee and made a failed to tell the truth, and was guilty of th

statement respecting those charges against crime of perjury.

the two Boston attorneys. There was ample “(5) There was no evidence that the state- evidence before the single justice to the efments made by Sleeper to Keating and Proc- fect that each made a statement before that tor were true. Sleeper not only denied making committee in substance and effect that the rethem, but negatived the facts set forth there- spondent had told the witness in categorical in. The parties referred to in the statements detail that a client had consulted the reemphatically denied their truth. Hollis H. Hunnewell, named therein, although in New spondent about a request that he go to a York, was unwilling to come to this common

room in a Boston hotel, at a specified time, wealth to give testimony, and his deposition was and meet the two lawyers then being invesnot taken.

tigated by the committee; that, after pre"(6) There was evidence that Hunnewell bad liminary advice, the client went to the room consulted Sleeper concerning a claim which he in the hotel as requested, where the respond(Hunnewell] stated to Sleeper had been made ent soon followed and found there these upon him. "(7) Hunnewell waived any privilege as to that some conversation followed and the

same two lawyers, together with another ; what had taken place between Sleeper and himself.

meeting broke up without any money being "(8) Sleeper was guilty of gross misconduct paid. Proctor also said that he told the re. when, before the subcommittee of the

grievance spondent that the client was Hollis H. Hunnecommittee of the Boston Bar Association he well, and the respondent replied that that untruthfully denied that he had told Keating was so. There was evidence tending to show and Proctor the story hereinbefore referred to that thereafter the respondent came before No order of disbarment is made on this finding.

the same committee. He first declined to "The respondent duly requested certain rul- make any statement whatever respecting ings which are hereto annexed. I refuse those what occurred in the room in the hotel, and, numbered 1, 2, and 8. Those numbered 3 and later, on examination by one of the attorneys 4 are immaterial in view of my order; those whose conduct was being investigated, and numbered 5, 6, 7, and 9 are given, although who was said to have been in that room, desome of them are now immaterial and very like- clared unequivocally that that attorney was ly too broad in their scope.

not in the room. He also asserted that he “An order is to be entered disbarring the had never made to either Keating or Proctor respondent solely on the ground of perjury committed in the trial before me.”

a statement that he had seen the attorneys

under investigation at the room in the hotel. [1] A proceeding for the disbarment of an A stenographic report of the statement made attorney at law is at common law and not in to that committee by the respondent was equity. Therefore, when in such proceeding presented in evidence. Keating and .Proctor questions are presented to this court respect- testified before the single justice. Their tesing general or special findings of fact made timony does not appear to differ in any maby the trial court, such findings stand when I terial particular from their statements to the

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committee. The ground covered by the sev. , ment. Berman v. Coakley, 243 Mass. 348, eral statements to the committee was the sub- 354, 137 N. E. 667, 26 A. L. R. 92, and cases ject of full inquiry at the trial before the there cited. single justice, as well as all other matters [4] Plainly in view of what we have al. involved. The respondent also testified be- ready said, the second request ought not to fore the single justice, as did numerous other have been given, to the effect that there was witnesses who had talked with him about no evidence to support any finding other than this subject. No further review of the evi- that the respondent had been faithful to all dence is necessary to demonstrate that it was his duties to his client and as an attorney a pure question of fact whether the charge and counselor of the court. No one could for disbarment already summarized was be regarded as faithful to the obligations proved. The credibility of witnesses was imposed on him as a member of the bar wholly for the single justice. If the testi- who committed the acts found to have been mony of Keating and Proctor, and that of done by the respondent. other witnesses, were believed, that charge [5] The finding made in the course of the was sustained.

trial as a basis for a ruling and embodied in It follows that there was no error of law paragraphs 5, 6, and 7, of the conclusions in denying the first request for ruling. Par- of the single justice, to the effect that the agraphs 1, 2, and 3 of the findings of the sin- respondent was consulted by Hollis H. Hun. gle justice are amply supported by evidence. newell with respect to his relations with a

[3] The first sentence of paragraph 8 of designated woman, also finds support in the the conclusions of the single justice dis- evidence. Several witnesses testified with closes no error of law. If it be treated as greater or less positiveness that the responda finding of fact, it plainly is supported by ent had identified a man of that name as the evidence. In this aspect it is but little his client. It was the exclusive province more than a summarization of the special find- of the trial justice to follow his own conings which have gone before, except that em- victions in believing that identification and bodied in paragraph 4. If it be regarded as in discrediting the testimony of a contrary a ruling of law, it is free from error. An tenor. Boston Bar Association v. Hale, 197 attorney at law who made, to two members Mass. 423, 436, 83 N. E. 885. of the state police, one of whom at least [6] It is not necessary to review the evi. was engaged in an official investigation, dence in detail or to discuss the various arstatements concerning other members of the guments designed to support the credibility bar of the nature shown on this record, of the respondent and to throw distrust upon and who later, when charges of the same that of other witnesses. The trial justice character as those described in his state- was acting wholly within the bounds of his ments were being investigated by a commit- duty in passing upon all those matters. His tee of the Bar Association, denied that he conclusions are not subject to review here. ever made such statements, is guilty of [7] The eighth request was refused rightly. gross misconduct. It was a flagitious false. This petition for disbarment was not designhood. If the statements made to the state ed to elicit information as to the relations police were false, it was his clear duty to of the respondent with his client but to desay so before the committee of the Bar As- termine whether the respondent's professionsociation. That committee was engaged in al conduct has been so reprehensible as to an important and highly estimable public render it proper with a due regard to the service in making inquiry into the conduct public welfare for him longer to be a memof two members of the bar against whom ber of the bar. Inquiry as to his relations grave charges had been made. If the charg- with his client Hunnewell was merely and es were groundless, the two members of the properly incidental to that main issue. bar were entitled to exoneration; if they [8] There was no error of law in the findwere well founded, proceedings for their dis- ing No. 4 by the single justice that the rebarment ought to be instituted to the end spondent in giving testimony at the trial bethat they be removed from the ranks of an fore him, “knowingly failed to tell the truth honorable profession, and thus the public and was guilty of the crime of perjury" in a be protected and the administration of jus- designated particular. Of course, no charge tice purged of untrustworthy officers. It of such perjury was or could be included was a painful duty which the committee was among the charges set forth in the petition trying to discharge. To make false state for removal of the respondent. One of those ments to a committee, undertaking such sal- charges was that he was (to quote the words utary public service, is a peculiarly atrocious of his exceptions), “guilty of gross misconform of untruth. Conduct of that nature duct when he came voluntarily to testify beviolates the standard of probity and recti- fore the committee of the Bar Association, tude, which is a fundamental prerequisite and deliberately lied to the committee by defor every attorney at law. Common honesty nying that he had told Arthur E. Keating and is essential for every lawyer. The want of William H. Proctor a story as to represenit constitutes adequate ground for disbar- tations made by his client to him, as said

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(146 N.E.) Keating and Proctor had in substance testi- , tice could not escape deciding the question fied before the committee.” The respondent, whether the respondent was committing perin his answer, denied that he had made such jury before him, it was the part of frankfalse statement. The subject of the veracity ness and of propriety on his part to state and honesty of the respondent touching a that fact as one of his findings. It showed specified matter was thus directly put in is the grounds on which rested his ultimate sue. The charges confined the inquiry as to findings of the facts. Perjury of a witness that veracity and honesty to a designated in testifying before a court is not infreoccasion. When the respondent offered him- quently taken into account in that very proself as a witness in his own behalf, it was ceeding. In cases where, in addition “to the inevitable that his examination would cover essential elements of perjury under the genthat specified matter. The entire issue on eral law, the further element of obstruction that charge was whether he had made the to the court in the performance of its duty” statements to Keating and Proctor which is found to exist, the witness adjudged guilty they said he had made to them. Nobody con- of such conduct may be committed for contended that those statements were true be- tempt. Ex parte Hudgings, 249 U. S. 378, cause there was no evidence that they were 383, 39 S. Ct. 337, 63 L. Ed. 656, 11 A. L. R. true. In its last analysis one inevitable and 333, where United States v. Appel (D. C.) 211 necessary question for the single justice to F. 495, is cited with approval. As before decide was whether the respondent was tell- pointed out, the incidental finding that a ing the truth with reference to the matter witness has committed perjury is not infrespecified in the charge. The respondent as quently the basis of the verdict of a jury. a reasonable man must have known that The first sentence of paragraph 8 of the that was a necessary and inevitable question findings of the single justice is in effect a for decision. The only escape from the de- necessary conclusion from paragraphs 1, 2, cision of that question would be so utterly 5, 6, and 7. It is in substance both a findto disbelieve Keating and Proctor and the ing and a ruling. As has been pointed out other witnesses as never to reach the ques- earlier in this opinion it is not tainted with tion whether the respondent was telling the any error of law. The second sentence of truth. That, however, was very remote. paragraph 8 is in these words: Their testimony would naturally be given

"No order of disbarment is made on this some credence under all the circumstances. finding." The respondent was not advised to rest his case without testifying himself. It is mani- That sentence must be read in connection fest that there was categorical contradiction with the final sentence of the conclusions, between the testimony of Keating and Proc- which is in these words: tor, corroborated by other testimony, on the "An order is to be entered disbarring the one side, and the testimony of the respond- respondent solely on the ground of perjury ent, on the other side. There was no pos- committed in the trial before me.” sibility of reconciling such completely repugnant and incompatible testimony. There The meaning of these two sentences, read was no rational ground for thinking that together, is that the single justice, although the testimony on the one side or the other finding the respondent guilty of gross miswas mistaken. That on both sides could not conduct as charged in the petition for rebe true. That on one side must be false. moval, did not make an order for disbarment The respondent and intelligent counsel must on that ground alone; he passed the queshave perceived all that when the respondent tion by without decision whether such order took the witness stand to testify in his own ought to be made; but, because the respondbehalf. His whole hope of prevailing in the ent had committed perjury in defense to the case rested on the question whether the sin. petition for renioval touching the very ingle justice would believe his testimony. The cident on which the charge in the complaint issue really narrowed to the single point was framed, his character and conduct were whether the respondent was telling the truth such that an order for disbarment was made. of was committing perjury in his testimony These two sentences do not mean that the respecting the specification of the charge. respondent would not have been disbarred If such a situation had presented itself on or disciplined at all because of the falsehood & trial to a jury, counsel on each side in told out of court. That would be unthinkable their arguments rightly would have discuss- conduct on the part of any judge who had ed the truthfulness of such a witness. The made the findings here set forth. If it were presiding judge, in his charge, rightly could susceptible of that construction, it would be have told the jury that the real point for manifestly erroneous matter of law. them to consider was the veracity of such a

These two sentences, taken together, signify witness

. These are but various phrases for that, whatever that discipline might have expressing the thought described with tech- been for the gross misconduct by itself the nical accuracy by the inquiry, did he com- order for disbarment was made because the mit perjury or not?

Since the single jus- very falsehood previously told out of court 146 N.E.-18

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