{ "id": 4664996, "name": "IN RE PETITION FOR DISBARMENT v. THOMAS B. CATRON and CHARLES A. SPIESS, Respondents", "name_abbreviation": "Disbarment v. Catron", "decision_date": "1895-12-20", "docket_number": "No. 637", "first_page": "253", "last_page": "326", "citations": [ { "type": "official", "cite": "8 N.M. 253" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "36 Fed. Rep. 242", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6729087 ], "opinion_index": 3, "case_paths": [ "/f/36/0242-01" ] }, { "cite": "1 Fed. Rep. 784", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3719027 ], "opinion_index": 3, "case_paths": [ "/f/1/0784-01" ] }, { "cite": "17 Fed. Rep. 793", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3743357 ], "opinion_index": 3, "case_paths": [ "/f/17/0793-01" ] }, { "cite": "6 Fed. Rep. 861", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6738708 ], "opinion_index": 3, "case_paths": [ "/f/6/0861-01" ] }, { "cite": "4 Fed. Rep. 198", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6716475 ], "opinion_index": 3, "case_paths": [ "/f/4/0198-01" ] } ], "analysis": { "cardinality": 2405, "char_count": 141963, "ocr_confidence": 0.452, "pagerank": { "raw": 3.524673400133217e-07, "percentile": 0.883988603196557 }, "sha256": "d7ea24d20134774cb45dca9b89ca5c4cb57e7966e152c1e88ad58d7fb309b1eb", "simhash": "1:96062d8df4b8c4e7", "word_count": 25201 }, "last_updated": "2023-07-14T15:56:15.654849+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Bantz and Collier, JJ., concur in the conclusion reached, but file separate opinions herein." ], "parties": [ "IN RE PETITION FOR DISBARMENT v. THOMAS B. CATRON and CHARLES A. SPIESS, Respondents." ], "opinions": [ { "text": "Hamilton, J.\nThis is a proceeding upon charges and specifications for the disbarment of Thomas B. Catron and Charles A. Spiess, who are members of the bar of this court. The testimony has all been taken on each side, and the matter is now submitted to the court for a determination. The.ability and high professional standing of at least one of the respondents, the vast importance of this proceeding in its-results, both to them and to the bench and bar of the territory, the great public interest manifested by this investigation, and the anxiety felt in its final determination, have rendered it proper that we should give the reasons which, we think, furnish a sufficient justification for the conclusion at which we have arrived.\nThe facts and circumstances out of which this investigation arose had their origin in, and are the outgrowth of, a great public criminal trial which occurred \u2022in Santa Fe county in the months of April and May, in the year 1895. On the twenty-ninth day of May, 1892, Francisco Chavez, an \u00e9x-official and prominent citizen of Santa Fe county, was assassinated. The prominence of the deceased, and the cowardly manner of the murder, aroused that intense public feeling and indignation which usually follow crimes of this character. Investigation led to the detection and arrest of Francisco Gonzales y Borrego and three others, all of whom were charged with the commission of the crime. A preliminary examination of these parties was had before the then district judge of the First judicial district in Santa Fe county, at which a large amount of testimony was taken and a large number of witnesses examined. At the regular term of the district court following, the defendants in that preliminary proceeding were indicted for this crime, and were subsequently, as above stated, tried and convicted, and are now under sentence of death, awaiting the final determination of the case in the supreme court, to which it- has been appealed.\nThe respondents in this proceeding were counsel retained for the defendants in that criminal trial. They, appeared and conducted the case at the preliminary investigation, and also defended them on their final trial in the district court, under the indictment; and it is claimed that, while acting as attorneys for defendants in that case, the respondents were guilty of unprofessional conduct, for which they should be disbarred and removed from practice as attorneys and' officers of this court. At the first session of this court in August, 1895, Jacob H. Crist, the district attorney for the First district, who conducted the prosecution in the criminal trial above referred to, appeared in this.court, and filed a number of affidavits, charging the defendants with unprofessional conduct, and accompanied them with a petition, calling the attention of the court to the same, and asking the court to take such action in the premises as it should deem best. This court, upon an investigation of the affidavits, deemed the charges of sufficient gravity to call for a full investigation. The court therefore entered an order appointing a committee, consisting of four of the leading members of the bar of the territory, who, in conjunction with the solicitor general, were directed to take charge of the matter, and prepare and file in this court such charges therein as they, in their judgment, might deem proper, and to take charge of such investigation and offer such testimony in support thereof as, in their judgment, the public interests might require. Under this order the committee prepared and filed charges and specifications against each of the said respondents, to which each of them answered, denying all of the charges, and demanding an immediate hearing thereon. The committee to whom had been intrusted the unpleasant duty of filing these charges and conducting this. investigation have discharged that duty with zeal and ability which commends itself to the favorable commendation of both the court and the bar.\nThe charges filed contain five separate and distinct specifications, charging the respondents with five separate and distinct unprofessional acts. Testimony has b\u00e9en offered which, if accepted as credible, tends to the establishment of these charges. The respondents have each taken the stand, and have positively, specifically, and in detail denied all of the material allegations set forth in these several charges. The matter is therefore presented to us' with a mass of. conflicting testimony, apon which we are called upon to sit in judgment, much in the same way as a jury would sit in passing upon the rights of one of its citizens in a different tribunal. It is our duty to try this issue upon the evidence produced and admitted upon this hearing, and to bring to its consideration that calm, deliberate, and unbiased judgment which should ever characterize judicial investigation, and by which a just, correct, and proper conclusion alone can be reached. The respondents have a right to invoke in their behalf, at the hands of the court, that same presumption which should be accorded to the humblest citizen, when placed on trial for the most trivial offense. The prosecution has a right to expect that full, fair, and just credit to all of its testimony which it would demand at the hands of a jury in another and different court. Both parties have a right to demand that, in our consideration and determination, we will be guided by those rules of presumption and the principles of evidence which have become established as a result of the combined wisdom and experience of ages. Gruided by these principles, let us come to the consideration of all the testimony offered by either side in this proceeding, and giving to each the full measure of credit to which it is entitled. Let us arrive, if we can, at what is a just and correct conclusion.\nThe first specification against the respondent Catron charges him with unprofessional conduct, in substance, that he (the said Catron) procured an interview with one Ike Nowell, who was a material witness for the said prosecution in said Borrego trial, and who testified on the preliminary examination, and endeavored to get the said Nowell to give entirely different testimony from that which he (the said witness) had given, and tried to get the said witness to avoid testifying in the said cause. The testimony admitted by both sides shows that Nowell was a material witness for the prosecution in that trial, and testified on preliminary examination to material facts, seriously damaging to the defendants; that, after that examination, he was tried and convicted in the district court of Santa Fe county of the crime of adultery, and sent to the penitentiary, and was in the penitentiary at the time of the beginning of the trial of the Borregos for murder; but the prosecution, desiring to use him as a witness in that trial, had secured for him a pardon during the progress of that trial; but the respondent Catron, having been present at the preliminary examination, and having learned that the witness would be pardoned and would again be'introduced as a witness on behalf of the prosecution, went out to the penitentiary, and had an interview with the witness Nowell, a few days before he was released and placed on the stand. The testimony of the respondent, uncontradicted, is that the witness Nowell had made two statements, one under oath at the preliminary hearing, and the other and different statement to his partner, Mr. Spiess, the other respondent herein, which statements were entirely opposite to each other, one favorable to his- client, and the other favorable to the territory. The respondent, as he says, visited the witness to learn from him which of these statements was true, and which he (the witness) would testify to when again placed on the stand. If the respondent, as he says, honestly believed that the witness had made two statements in relation to the case in which he was a witness, which statements were diametrically opposite to each other, one favorable to his client and the other unfavorable, then the respondent had a right to use all legitimate and proper means to ascertain which statement was correct, and had a right to talk to the witness himself and learn from him which statement was correct, provided he did not use any improper means, by word or act, to induce the witness to conceal, change, or in any way give improper testimony. Attorneys engaged in the defense of important criminal trials have the right to ascertain by proper and legitimate means the nature, strength and credibility of the testimony to be offered in the case, so long as they do not by word or act attempt in any manner to influence a witness to conceal, modify, or change his testimony from that which is absolutely true. We know of no rule of morals or professional ethics which is opposed to this view. If this is not allowed, then you break down the barrier which the law and the courts have erected as a shield to protect the lives and liberty of the citizens from what might prove an unjust and designing prosecution. We do not wish to be understood as in the slightest degree countenancing any conduct on the part of any attorney in attempting in any manner to influence a witness to conceal, change, or in any manner give improper testimony under any circumstances. Such an act, when established, should meet with condemnation by the bar, and should be visited with disbarment by the court. We discover, however, no unprofessional conduct in the respondent in his simply visiting the witness to honestly ascertain what would be his testimony, so long as he did not in any way attempt to influence him to conceal, falsely change, or modify his testimony.\nBut it is contended by the prosecution that the respondent Catron visited the witness Nowell for an improper and illegal purpose; that he endeavored to induce the witness not to testify on the trial, or, if he did, to change his testimony, or refuse to testify on the ground that he (the witness) would criminate himself. If we were to credit the whole of the testimony of tie witness Nowell, then this part of the charge is established, as Nowell states that the respondent Catron came to the penitentiary, and he had a talk with him, in which the respondent Catron told him (the witness), in substance, that he (Catron) did not want him (the witness) to testify, as he had done before, about seeing the Borregos on the night of the killing of Chavez, and that when the witness asked the respondent how he could \u201cget out'of it,\u201d and if they would not \u201cget him into trouble for perjury,\u201d the respondent told him {the witness) that he could refuse to testify on the ground that the answers \u201cwould criminate him\u201d (the witness); that the respondent told him (the witness) that he (the respondent) would be there at the court, and would defend him (the witness) if he got into any trouble. The respondent denies this statement positively and unequivocally'. The respondent states that he visited the witness, and had the interview with him, for the purpose solely of learning what his testimony would be upon the trial; that having been advised that the witness had made two statements in relation to the matter, one to Spiess, and one on the preliminary examination, each different from the other, he (the respondent) desired to know which was the truth; that the respondent visited the witness honestly for the purpose of learning from the witness which statement was true. One statement made by the witness was favorable to the clients of the respondents,' and one was against them, and favorable to the prosecution; and the respondent, in the interest of his clients, with a \u2022desire to learn the true facts, had the interview with the witness. The respondent denies positively that he attempted in any way or manner to influence the witness, or attempted in any way to induce him to change or modify his testimony, save to tell the truth. Eespondent testifies that, in his interview, he (the witness) admitted to respondent that the testimony given by him (the witness) on the preliminary examination for the prosecution was false, but the other statement made to Spiess, favorable to the defendants, was true; that he was induced to give his testimony on the preliminary examination because he (the witness) thought it would help him on his trial on the indictment then against him. The testimony of the respondent is a clear and positive denial of the testimony of the witness Nowell that he (the. respondent) made any attempt whatever, in any manner, to induce the wfitness Nowell to swear falsely or change or modify his testimony in any way to conflict with the truth. No one was present when this interview was had, save the witness Nowell and the respondent Catron.\nUpon the testimony of these two witnesses, standing in direct opposition upon this part of the charge, neither being supported by corroborating facts, we are asked to reach a conclusion as to whether the first charge is sustained. If this were but a civil suit to recover a debt, instituted by Nowell against the respondent in any of the inferior courts, and the only testimony was the affirmance of one as to the debt, and a positive denial by the other, assuming both to be of the same credibility, could the court pronounce a judgment upon the testimony of Nowell? Under the evidence offered before the court and contained in this record, these two witnesses do not stand before the court possessing equal credibility. The uncontradicted record shows Nowell to have been a penitentiary convict, indicted, tried, and convicted of a felony, and sentenced to imprisonment. He abandoned his home, deserted his- family, disavowed his marriage, dishon-' ored his children, and became the companion of disreputable characters, until he is pronounced, by some of his neighbors, at least, as unworthy of credit. Take the testimony of this witness, weigh it in the scales of impartial justice, as against the testimony of the respondent, test it by those rules which should, guide conscientious judicial action, and can we, upon it, pronounce a judgment which will result in the disbarment of the respondent? We do not believe that such a conclusion could be sanctioned or sustained, either by .reason or judicial authority. We therefore are irresistibly led to the conclusion that this charge is not sustained by the evidence.\nThe ground of the second charge of unprofessional conduct against the respondent Catron is, in substance, that one Porfilia Martinez de Strong was a witness who testified for and on behalf of the defendants in the trial of the Borregos, both at the preliminary hearing and at the final trial, and that such testimony was material, and that it was false, and that she was induced to give such false testimony by the improper conduct of the respondent. Her testimony shows that parties came to her house at Lamy at night and brought her under what she supposed was a warrant, to SantaFe; that she was taken to the house of Charles Conklin, and he told her what she was brought for, and what she must testify to; that she went upon the stand at the preliminary hearing, and gave this testimony; that, upon the final trial, she was again brought to Santa Fe, and taken to a room in the office of the respondent Catron, and slept there; her meals were brought to her; that she was brought to the courthouse, and testified, and was then taken back to this room, and remained there until the train went out, and then returned home. She was brought back a few days after, was placed again on the stand by the district attorney, and was cross-examined. In this latter examination she testified that all her former testimony given for the defendants, both in court and on the preliminary hearing, was false and untrue; that she was induced to give this false testimony because she was afraid to tell the truth. Her testimony in this regard is clearly contradicted by other witnesses in the case. The testimony of these witnesses is that they went down to Lamy, and brought her up here upon a subpoena; the respondent, I think, testified that he had a subpoena issued, and that he gave it to the witness Thayer. Thayer went for this woman, and brought her up. She was brought here at the expense of the defendants. The money was paid, I think, part by the respondent himself, \u2014 an amount which would be her legitimate fees, which she could have claimed, and which she would have been entitled to. She was brought to the office of the respondent Catron, and placed in a room there by Thayer. She remained there all night; took her meals there during the next day. She returned to that room after she testified in the court room on the trial; was kept thex-e until the train went out; and was then put on the train, and sent home. The respondent Catron states that he had heard that she was a material witness and that he asked that she be sent for and brought here in order that he might see her; that she was subpoenaed as stated, and brought here; that he did not know she was in his office until the next morning when he found her there, and he asked her what she was doing in the office; that she said she had been brought up thereby this man Thayer, who had brought her from Lamy; he then asked her what would be her testimony; that she said in reply that her testimony would be the same as it was on the preliminary trial. Respondent states that he said to her: \u201cI don\u2019t remember what that was. Will you repeat it to me again?\u201d She then sat down, and repeated to him her testimony substantially as she had given it upon the preliminary examination. He then left her, and went off, and engaged in other business connected with the trial of the case, and she was afterwards brought upon the stand and testified. After her testimony in chief was through, and the prosecution announced that it desired time to get out the transcript of her evidence on the preliminary examination, before they could be ready to conduct the cross-examination of this witness. The respondent then announced that he would not be responsible further for her fees. This witness then went home, and in a few days came back, and went upon the stand, and denied positively the truth of the statement which she made upon two previous occasions, when put upon the stand as a witness. The respondent denies that any threat of any kind or character or any influence was used or attempted to be used upon this witness. I find that the testimony of this witness stands before us, denied in part by the witness Conklin, denied in part by the witness Spiess, denied in part by the witness Thayer, denied in part by the witness Domingues, and denied, in so far as any criminality is shown, by the respondent Catron himself. We therefore must say there is only one conclusion to which the court can come in examining this testimony \u2022with reference to the second charge or specifications,\u2014 that it is not sustained by the evidence.\nThe third charge is in reference to, and charges, that the respondent Catron had attempted to influence or control improperly the testimony of the witness Max Knodt, who was a witness for the prosecution on the preliminary trial of the Borregos, and that he obtained for him a pass to Wingate, as a means of inducing him to give improper testimony. This charge, I must say, is sustained in no part, except in the fact that respondent did obtain for the witness Knodt a pass to Wingate. The witness Knodt himself comes upon the stand, and testifies that he wanted to go to Wingate. He asked some person whether he could obtain a pass. He was directed to Mr. Spiess. Mr. Spiess directed him to Mr. Catron. Mr. Catron, after a conversation with, the witness, applied for a pass for him to Wingate. The witness says that Mr. Catron told him that he must be there at the Borrego trial; that the court would fine him $25 if he did not come. In this statement of the witness, he denies positively that Mr. Catron discussed his testimony in the Borrego case with him, or attempted in any way or manner to induce him, or to influence him, to conceal any part of his testimony, or modify or change it in any manner whatsoever. The respondent testified that he obtained the pass; that the witness Knodt applied to him for a pass to go to Wingate to see a lady out there, whom he desired to visit, who used to be a servant in Mr. Catron\u2019s house. Mr. Catron told him that he could not, probably, get him a pass upon that ground, but, if he could transact some business for him (Catron), that he might be able to obtain the pass for him. This statement of the respondent Catron we must prefer to the other, because it is not denied. No attempt or effort has been made to show that the statement of the respondent as to the reasons why he obtained the pass in behalf of Knodt is untrue. Therefore we must accept the statement of the respondent as true with reference to this fact, and I say that in view of the condition of the testimony, the third charge in reference to the witness Knodt is not sustained in any particular.\nThe fourth charge is based upon the testimony of Mrs. Baca, who is the mother of Luis and Mauricio Gonzales. \u2019 Luis Gonzales and Mauricio Gonzales were two material witnesses for the prosecution in the trial of the Borregos. Luis Gonzales had testified upon the preliminary examination, and also was brought and kept as a witness to be used on the final trial. It is claimed in this charge that the respondent Catron sought, by the use of money, to induce this woman, who is the mother of these boys, to get them away from the court, or to get them to modify their testimony or change it, or, rather, not to testify against the Borregos. She states in her testimony that she was going by the office of Mr. Catron, and he knocked on the window, raised it, and called her up to the office. She came up to the office, and in her conversation with Catron something was said with reference to her pension papers. She talked about the papers, and offered to pay Mr. Catron for his services in her behalf connected with the papers. Mr. Catron stated that he did not want any pay for the services he had rendered. According to her statement, all he wanted was for her to do something to aid and assist the Borregos. She said that he then offered to pay her money, give her assistance, be her friend, and give her help, if she would induce her sons to testify in behalf of the Borregos, or not to testify against them. This is the statement made by her. This conversation occurred in the presence of the respondent and this woman alone. Nobody else was present. Bespondent goes upon the stand, and positively, without hesitation, and without qualification, denies wholly and absolutely this statement. So we have, so far as this charge is concerned, the testimony of the woman Mrs. Baca, on the one side, and the testimony - of the respondent, on the other. Under our views of the weight which should be attached to testimony, and the amount of- evidence which should be required to establish and sustain a charge of this kind, we conclude that under this testimony, taking these two witnesses as they stand before us, assuming them to be of equal credibility, the prosecution in this charge have wholly failed to sustain the allegations made.\nNow, as to the fifth and last charge, that the respondent attempted, by the use of money and other means, to influence the witness Mauricio G-onzales to testify falsely or improperly in the trial of the Borregos: The respondent Catron denies absolutely that anything of this kind was done; .denies that he offered any money, that he agreed to pay any money, or that he offered any kind of inducement to this witness to testify falsely of untruthfully in any way in this cause. The testimony upon this point is not corroborated by any other facts or any other circumstances. Therefore we say that, under this testimony, even if the witnesses were of'equal standing, this charge can not be sustained. It may be proper, however, in order to see and understand the weight which should be attached to the testimony which is offered by the prosecution in this case, to look at it for a moment. The testimony is that the woman, Mrs. Baca, upon whom the fourth charge is based, was a woman whose chai'acter was such as to render her unworthy of credit. The testimony shows, too, that the witness Luis Gonzales and the witness Mauricio Gonzales were witnesses of such character as to render them unworthy of belief. Promi-' nent citizens of this community, officials in high standing, prominent members of the bar, reputable business men in large numbers, have come upon the stand, and have testified, without qualification, that they would not believe these witnesses under oath, in consequence of their character, their reputation, and their standing in this community. The witness Porfilia Martinez de Strong, \u2014 her testimony itself has furnished facts sufficient to mete out its own condemnation. She twice testified to one thing. She came upon the stand subsequently, and testified directly in the opposite way. Here we have a witness of this character coming upon the stand, testifying in directly opposed directions in the same case. Besides, .the testimony which has been introduced with reference to character applies to her as well. The testimony of Mauricio Gonzales shows that he has been willing to make affidavit on both sides of the case. He testified in one way, and then made an affidavit in another way. So that, having taken this testimony, and applied to it those rules which the court ought to apply in weighing testimony, giving to it that credit to which it is entitled, we must conclude that these charges are not sustained. It may be proper, .also, to remark that these charges are five in number. Each stands by itself, a separate and distinct charge as to a separate and distinct act, alleged to have been done'at separate and distinct times, with separate and distinct individuals. It is proper to say that the testimony in no one of these charges tends in any way to establish the truth of any of the others. Therefore, we must dispose of these charges separately, upon the testimony which has been offered applicable to that particular charge. Viewing it from that standpoint, and applying the rules above given to this testimony, we must conclude that this evidence is not of a character that commends itself to credit, and is not testimony such as we ought to disbar respondent upon.\nAs to the respondent Spiess, it is charged that he made a trip to Las Vegas, to see the witness Domingo Apodaca, who had been examined upon the preliminary trial of the Borregos, and that he endeavored to induce her to swear falsely in the Borrego trial. It was stated by the district attorney, in the opening of the Borrego trial, that he expected to prove a confession made by Francisco G-onzales y Borrego to this Domingo Apodaca; that the respondent went to Las Vegas with a knowledge of that fact, and had an interview with this witness, and in that interview he offered her money, offered her support, offered his protection as a lawyer, and the protection of his firm, if she would not testify against the Borregos. This is her testimony. In this respect the testimony of the witness Domingo Apodaca is denied by Mr. Ortiz, who says he was present at the entire .interview which was held between the respondent Spiess and .the witness Domingo Apodaca in Las Vegas, and that no such conversation occurred. The respondent also denied the statement. So we have the testimony of these two witnesses against the testimony of the witness Domingo Apodaca. The other evidence with reference to her shows that she is a public prostitute. Her testimony, as I think, is of such a character as to cause the court to, at least, concede to it only a limited amount of credit; but against her testimony alone, uncorroborated, denied as it is by the testimony of the other two witnesses, which stands uncorroborated, we think that this charge with reference to the respondent Spiess is not sustained.\nIt is charged that the respondent Spiess offered money to Luis Gonzales; that he'was in front of the postoffice; that he was met there by Gus O\u2019Brien, and Gus O\u2019Brien asked him if he did not want a'job, if he did not want work. He said that he did, and went with Gus to the office of the respondents, Catron and Spiess. He went to the office, and Mr. Spiess was absent. Gus O\u2019Brien telephoned to the Palace Hotel, and in a few minutes Mr. Spiess came in. Mr. Spiess spoke to him, and he spoke to Mr. Spiess. He says that he asked Mr: Spiess what he wanted. Mr. Spiess said that he wanted him to do something for. him; that he wanted him to help him in the Borrego ease; that he wanted' him to make au affidavit that Gov. Thornton had offered him (the witness) money to swear as a witness in the Borrego case; that he would give him $10 if he would do so. Spiess sent Gus O\u2019Brien into the other room to. get the check book; that he brought out the check book; that he instructed Gus O\u2019Brien to draw him a check for $10 for Gonzales, and offered it to him, to influence the witness in that ease. The respondent\u2019s testimony is that this is not true. He denies positively that he offered him anything, that he drew or had any check drawn, and denies that he wanted him to help him in the Borrego trial. The testimony upon this subject is the testimony of these two witnesses, the witness Gonzales, upon one hand, and Spiess, the respondent, upon the other. In the light in which we view the testimony of Luis Gonzales, and the credit which, in our judgment, it is entitled to receive, it is not such as to warrant us in finding the defendant guilty of this charge.\nIt may be contended that this conduct of the respondents in going to these witnesses, and talking to them, was of itself improper. It may also be contended that the sending for and the bringing of a witness here, in the manner in which they (the respondent's) did with reference to the witness Porfilia Martinez de Strong, is improper and unprofessional conduct. If the record in this case contained testimony which could in any way establish the fact that the respondents brought these witnesses to their offices, or visited them with the view of in any way influencing their testimony, or if there was credible testimony showing that they attempted to tamper with any of the witnesses, then it would be our duty to find the respondents guilty. We can not, however, find from this evidence that such was the case. The vast importance of the trial in which the respondents were engaged, the intense public interest that was manifested and centered in its result, the bitter feeling of hostility which was engendered between the prosecution and the defense, led the respondents, as they say, to distrust the officers in serving their process for their witnesses, and caused them to have subpoenas issued in the case, and have them served by others outside of the regular officers, and caused them to bring some of their witnesses to their offices for consultation. We can not discover in their conduct anything which will warrant us in adjudging the respondents guilty.\nThe position of an attorney and counselor at law is that of an officer of the court. His relation to the court, the bar, and the public is one of trust and confidence. To his integrity and ability are not infrequently intrusted the lives, the liberty, and property of the citizen. 'Years of time, arduous labor, and constant application are required to elevate him to that professional standing which enables him to discharge with fidelity the responsible duties intrusted to his care. . If dishonest practices and unprofessional conduct have caused him to forget his obligations, and led him to a violation of this sacred trust, his name should be stricken from the roll, and he should be removed from a place in the ranks of the profession which he is found unworthy to fill. But a result so humiliating in its effect and so disastrous in its consequences to him should not be reached upon circumstances that appear merely suspicious, but only upon that credible and convincing testimony which will lead with reasonable certainty to the establishment of his guilt. By the laws of the country and the sanction of the courts, he has been admitted to that profession to which the energies of his life may be devoted. His zeal and ability may have gained for him a position of eminence and distinction in his calling, and he has thereby acquired a right of property in the privilege of engaging in its practice. This right and privilege should not be destroyed or taken from him, and he be deprived of its benefits, and driven in humiliation and disgrace from the profession, unless upon reliable proof, \u2014 such proof as would be sufficient to satisfy the mind of the court in determining questions involving the liberty and property of the citizen.\nGriving full consideration to all the testimony offered in this investigation, considering the credibility of the evidence, and the character, standing, and reputation of the witnesses presented in support of these charges, each charge being supported by an uncorroborated witness, whose credibility is impeached, both by his own evidence and by independent proofs, \u2014place this upon the one side, give to each portion of it that full weight and consideration to which, in the most favorable light, it should receive, place against this the open, frank, positive, and unqualified denial-by the respondents of each criminating fact contained in the charges, apply to this conflicting evidence the test of those well-established rules by which its character and weight should alone be determined, weigh each part of it in that just and impartial scale which should ever measure and control judicial decisions, and we are led irresistibly to the conclusion that none of the charges and specifications against the respondents are sustained by the evidence, and they should be dismissed.\nBantz and Collier, JJ., concur in the conclusion reached, but file separate opinions herein.", "type": "majority", "author": "Hamilton, J." }, { "text": "Collier, J.\nIn concurring in the conclusion of a majority of the court in this case, I can not assent to all that is said in the opinion of the court-.\u2019 It was announced at the time the judgment of the court dismissing the charges was rendered that some observations on certain practices indulged in by respondents would form a part of the opinion of the court. Many matters expected by myself to be adverted to are not contained in the opinion, or referred to either directly or indirectly. As to these I will not submit any views, because, as they in no way appear on the face of the record, I will not impart them for the mere purpose of giving an individual opinion.\nThe opinion does, however, contain some things I must express my dissent from. I do not believe that an attorney having a high sense of professional decorum and ethics would have permitted himself to visit the witness Nowell, upon, the plea that he honestly desired to ascertain what the witness would testify to, because he had stated to another in conversation a different state of facts from what he had already testified to. He could not rest upon' the presumption that the witness would repeat his former testimony, and it was not the office or business of the attorney against whose client that testimony militated to give that witness any warning or advice as to the pains of perjury. The fact that witness- could have testified in a certain way, and is told by the attorney of the client against whom that testimony bore that it would be shown that, he made contradictory statements, is itself a threat tending to the suppression of testimony. The attorney should have relied upon his right to impeach the credibility of such witness according to the rules of evidence, and the practice of the courts, and I can not agree that I \u201cdiscover no unprofessional conduct\u201d in the respondent\u2019s visiting and talking with the witness Nowell. While I think his act was blameworthy, I do not think it such reprehensible conduct as deserves disbarment.\nOther matters I do not care to advert to, except to say that I believe counsel should so bear themselves toward witnesses who are subpoenaed for the side to which they are opposed as not to give rise to the suspicion of improper influences being exerted; and I think that, so far as the witnesses Max Knodt, Domingo Apodaca, and Luis Gronzales are concerned, the respondents do not appear to have so conducted themselves as to ward off suspicion. If the two latter witnesses were of such unsavory character as the testimony of the respondents shows, and which the court takes as established, it were better for counsel to have kept aloof, instead of seeking one and being visited by the other, as is the case so far as respondent Spiess is concerned, it not being denied that Spiess visited Domingo Apodaca, nor that Gonzales came to his office upon the request of his employee.\nI have thought it my duty to say this much as to the concurrence I give to the court\u2019s opinion, because these matters appear on the face of that opinion.", "type": "concurrence", "author": "Collier, J." }, { "text": "Bantz, J.\n(concurring).- \u2014 It is a sufficient statement of reason for the conclusion reached in this case to say that whatever testimony there may be tending to sustain the substance of the charges comes from those who do not commend themselves to confidence, and such testimony can not outweigh that of men of respectable reputation.", "type": "concurrence", "author": "Bantz, J." }, { "text": "Laughlin, J.\n(dissenting). \u2014 This is an action brought on information filed in this court by Jacob H. Crist, as district attorney for the counties of Santa Fe, Rio Arriba, and San Juan, for the disbarment of the respondents, and to exclude them from the office, rights, and privileges accorded them as attorneys and counselors at law of this court.\nIn recording my dissent from the opinion filed by a majority of the court, and a dismissal of the charges filed herein against the respondents, it is done through a sense and an appreciation of the official responsibilities of the position and the obligations of my oath, and out of the respect and reverence I have for it, and the duty, respect and confidence possessed in me for the public and for the public interests involved and shown in this matter. Were my personal feelings and inclinations permitted to control over what seems to me to be an official duty which I owe to the position, and from which I am unable to 'see any avenue through which to escape, there would certainly be no dissenting opinion recorded by mein this particular and important case. To concur in an opinion by a majority of my brothers upon the bench, for all and in all of whom I have but the profoundest respect and confidence, is both an easy and a pleasant duty, and one to which there is always a certain degree of pride and honor attached; but to dissent on the facts in a case of this nature and importance, and to justify that dissent, is a duty unpleasant in the extreme.\nThis case arose immediately out of a criminal prosecution in the district court of Santa Fe county, wherein Francisco Gonzales y Borrego, Antonio Gonzales y Borrego, Lauriano Alarid, and Patricio Valencia were indicted, tried, and convicted for the murder of ex-sheriff Francisco Chavez; and in making this statement it is proper and necessary, in order to understand fully all the facts and circumstances, to resort to records now in that court, which are not part of this record, but which are public and notorious facts throughout the territory. During the nighttime of May 29, 1892, said Chavez was assassinated in Santa Fe by parties lying in wait, four bullets having penetrated his body. For some time thereafter it was not known who the assassins were. During the latter part of the year 1893, W. P. Cunningham, then sheriff of Santa Fe county, obtained information from one Luis Gonzales, which led him to the discovery of the murderers of said Chavez; and in November or December of that year one Francisco Rivera made an affidavit before Judge Seeds, judge of the district court, sitting as committing magistrate, that said Francisco Gonzales y Borrego, Antonio Gonzales y Borrego, Lauriano Alarid, and Patricio Valencia and Hip\u00f3lito Vigil were the guilty parties, and thereupon a warrant was issued, and placed in the hands of the sheriff, for their arrest, and all were immediately arrested, except Vigil, who resisted, and was shot and killed by the sheriff\u2019s posse. During January following, Judge Seeds, sitting as committing magistrate, heard the preliminary examination, which lasted some three weeks, and at the close held the said four defendants, and committed them without bail; and at the sitting of the succeeding grand jury they were all indicted for murder in the first degree; and during May and June, 1895, they were placed on trial on the indictment, which continued about forty days, resulting in a verdict of \u2018\u2018guilty as charged.\u201d Motions were made for a new trial and in arrest of judgment, and after an exhaustive argument in behalf of the motions they were both denied, and thereupon sentence of death was pronounced.on the defendants, and error was sued out in their behalf, and the ease is now pending in this court. Since the trial and conviction and the passing of death sentence by the court, two of the accused, to wit, Lauriano Alarid and Patricio Valencia, have confessed that all four of the defendants and the said Hip\u00f3lito Vigil did commit the murder in the manner charged, and that the testimony given on the trial by the prosecution was substantially true. These confessions were in writing, signed and sworn to by two parties making them, and in the presence of a brother of one of them, and have been printed in the public press of the country, and have become a part of the public history of New Mexico. Chavez, by reason of his personal presence, his goodness of heart, and his kind and generous disposition, had attached many followers, not only of his political faith, but of the opposite faith as well, so that at the time of his assassination, and for a number of years prior, he was the acknowledged leader of his party, and much the strongest man politically in the county, and it was well known that he could elect or defeat any man he desired in local politics; and the testimony given at the preliminary hearing and on the trial on the indictment tended strongly to show that the primary motive for his assassination was political jealousy, a fear of his popularity and power, and an inordinate desire to remove him from the road of political preferment. I was of counsel for the prosecution at the preliminary hearing before Judge Seeds, and was therefore disqualified; and by agreement of all parties Judge H. B. Hamilton, of the Fifth district, came to Santa Fe, and gave his most patient, painstaking, and laborious attention to the long, tedious trial, and pronounced the death sentence on the four convicted defendants.\nThe information in the nature of charges upon which this action is based was filed by Jacob H. Crist, as district attorney, and who as such prosecuted for the territory in the case for the murder of said Chavez, out of which trial this case directly grew, and the firm of Catron & Spiess appeared for the defense. Said information was filed at a former day of this term of the court, and the court took the same under advisement, and, after due consideration, referred the same to a committee of highly respectable members of the bar, to wit, J. P. Victory, of Santa Fe, as solicitor general of the territory; A. A. Jones, of Las Vegas; B. S. Eodey and W. B. Childers, of Albuquerque; and S. B. Newcomb, of Las Cruses, \u2014 with power and authority to investigate and inquire into the information so filed, and to prepare and file such charges and specifications, if any such should be required, as in their judgment might seem proper, and.to prosecute the same before the court. At a subsequent day the committee filed charges and specifications, which are, in substance, as follows, to wit: (1) That the respondent Catron was guilty of unprofessional conduct in connection, with said trial in this: That one Ike Nowell was an important witness to very material facts for the prosecution in said trial, and that he had testified as such witness at the preliminary examination of said defendants, in January, 1894; and that before he had given his testimony he had been tried and convicted of adultery under the laws of the United States, and that after he testified at said preliminary hearing he was sentenced to three years in the New Mexico penitentiary; and, that while he was so confined, and during the progress of the trial of said defendants on the indictment, said respondent, believing that said Nowell would be introduced and examined at said trial as a witness on behalf of the territory, went to the said penitentiary, sought and had an interview with said Nowell, and in said interview endeavored to persuade him to give different testimony, when he should be introduced as such witness, from that which he had given on said preliminary examination, and suggested to said Nowell that he might avoid testifying to the facts which he had testified to at said preliminary examination by declining to answer upon the ground that the answer might criminate him; knowing that the witness then and there claimed that the testimony given by him, said Nowell, on said preliminary examination, was true. (2) That the said respondent was guilty of unprofessional conduct in connection with said trial in this: That one Porfilia Martinez de Strong was examined as a witness on behalf of said defendants at said preliminary hearing, having then testified to material and important facts, and that she was so induced to testify by means of intimidation and fear, caused by threats and false pretenses exercised over her by certain agents of said respondent, who claimed and represented to her that they were sent by said respondent to bring her as a witness, as officers of the law, when in fact they were not such; and that she was again introduced as a witness at the trial on the indictment, and testified on her examination in chief to material facts in behalf of the said defendants; and that she was so induced to appear and testify by reason of fear and intimidation exercised over her by said respondent and his agents; that one Fred Thayer- was -sent to Lamy to bring her to Santa Fe, and that said Thayer represented to her that he was a deputy sheriff, and arrested and took her into custody and brought her to respondent\u2019s law office in the nighttime, and kept and retained her in his private office the remainder of the night, and took her from there direct to the courthouse, and-on the conclusion of her examination in chief (the district attorney declining at that time to cross-examine her until he could have her former testimony written out) took her directly back to said office, and retained her there until 10 o\u2019clock that night, and then sent her home, \u2014 all of which conduct on the part of the respondent and his said agents tended to intimidate said witness; that she returned a day or two thereafter, and on her cross-examination testified that the facts which she had testified to at the said preliminary examination and on her examination in chief on said trial were false and untrue, and so given because of fear and intimidation as aforesaid, she being an ignorant and friendless woman. (3) That said respondent wasguilty of unprofessional conduct at said trial in this: That one Max Knodt, a witness, testified to important and material facts on behalf of the prosecution at said preliminary examination, and was offered as a witness to prove the same facts at the trial on the indictment, but on said trial said witness testified differently, and in such manner as to render his testimony valueless to the prosecution on said trial; that said Knodt admitted on said trial as such witness that respondent Catron had promised to procure for him a railroad pass from Santa Fe to Fort Wingate and return at any time said Knodt should desire one, and did so procure a pass for said Knodt; that the procuring and giving said Knodt said pass was for the purpose and had the effect of inducing him, said witness, to change his testimony from that given on the> preliminary hearing, and to' render it valueless to the prosecution. (4) That said respondent Catron was guilty of unprofessional conduct in connection with said trial in this, that subsequent to the preliminary examination, and prior to said trial on the indictment, said respondent offered money and other inducements to one Rosa Gonzales y Baca, mother of Luis and Mauricio Gonzales, two important and material witnesses in behalf of the prosecution, and by said offer endeavored to procure her to induce her said two sons to testify falsely on said trial on the indictment. (5) That said respondent was guilty of unprofessional conduct in connection with said trial in this, that he, subsequent to the said preliminary examination, and prior to the trial on the indictment, offered said Mauricio Gonzales money, and attempted otherwise to induce said Gonzales to make a false affidavit as to his information with reference to material facts about the killing of said Chavez by said defendants.\nThe witness Nowell, during the January, 1894, term of the United States court, held at Santa Fe, and at the same time the preliminary hearing in the case of the territory against the said Francisco Gonzales y Borrego, Antonio Gonzales y Borrego, Lauriano AT arid, and Patricio Valencia, which will hereafter be styled the \u201cBorrego Case,\u201d was being had for the murder of said Chavez, was indicted, tried and. convicted of the crime of adultery, in which respondent Spiess appeared as his attorney, and after the conviction, but before sentence was pronounced, he was offered as a witness by the prosecution in the Borrego case, and gave material and damaging testimony against the defendants, and afterward the court passed sentence, and fixed his punishment at three years in the New Mexico penitentiary. During the trial of the Borregos on the indictment, knowing the importance of Nowell\u2019s testimony, and that he had served nearly half of his time, I joined the governor, who had previously written fully all the facts, in a telegram to the department of justice, requesting a .pardon for Nowell, that he might again give his testimony on the trial; and immediately upon the receipt of the telegram the president granted the pardon, and so notified the superintendent of the penitentiary; and the testimony shows that during the next day after the superintendent received the notice of the pardon the respondent took a buggy and an employee in his office and drove, not by the usual way, but by a circuitous route, to the penitentiary, and there sought and obtained a private interview with Nowell, in which Nowell told respondent that he had been notified by the superintendent of his pardon, and that he was then a free man, and that the superintendent had requested him to remain until his clothes could be prepared, but that he did not know by whose influence the pardon had been secured; and the substance of that interview is here given as taken from the witness\u2019 mouth by the official stenographer, on his examination in chief:\n\u201cQ. How came Mr. Catron to see you? State it to the court, if you will. A. He came out there, and sent for me to come into the private office. I went up, and .sat down on one side of the table, and he.says \u2014 asked me how I was getting along; and he says, \u2018I don\u2019t want to\u2014 It is my business out here, that I don\u2019t want you to testify in this case, \u2014 the Borregos killing Chavez.\u2019 And I told him I didn\u2019t see how I could get round it. I says, H gave my evidence in the preliminary examination,\u2019 and I says to refuse to testify they would get me for perjury; and he says, \u2018No; they won\u2019t.\u2019 He says, \u2018I will tell you now what to do.\u2019 He says, \u2018You, when they ask you if you know the Borregos, you can tell them, \u201cYes,\u201d\u2019 and he says: \u2018If they ask you if you know of how Chavez was killed, you refuse to answer the question. Just say it would incriminate you.\u2019 And I sat there for a while, and he says to me, \u2014 and I didn\u2019t pay much attention to it,\u2014 he asked me what I thought about it. \u2018Well,\u2019 I says, \u2018I don\u2019t know.\u2019 I says, \u2018I have had enough of this trouble, and I'don\u2019t want any more trouble about it;\u2019 and he says: \u2018I will defend you, I will protect you. Do just as I tell you, and I will defend you.\u2019\n\u201cQ. State whether he said anything about bringing an action against them for keeping you in the penitentiary at that time? A. He said I could bring an action against them.\n\u201cQ. How long had you been there in custody after you supposed you were entitled to be discharged? A. Just the evening before. That was on Saturday, I believe, and on the sixth day of May, and I was turned out on the seventh.\n\u201cQ. Did you know you were to testify before Mr. Catron came out to the penitentiary to see you? A. I was satisfied what I had been pardoned out for.\n\u201cQ. \"Well, when Mr. Catron called on you at the penitentiary, did he say his business relations with you were as your attorney in the adultery case? A. I believe he did.\n\u201cQ. What, if anything, did he have to say, when he called on you at the penitentiary? A. He asked me not to make any r\u00e9mark about his being out there. He says, \u2018If you are asked the question, you can tell them I was your attorney in this adultery case; \u2019 that I would make that statement.\n\u201cQ. What did you say about it to him? A. I don\u2019t remember what answer I did make.\u201d\nOn his cross-examination he testified in part, and pertinent to the issue, as follows, viz.:\n\u201cQ. Did you not testify, in your direct examination, that your understanding was that you were pardoned out of the penitentiary to be a witness in the Borrego case, here, this morning? A. I said I supposed it was that.\n\u201cQ. Didn\u2019t you understand that that was the price of your testimony? A. I had no such promise.\n\u201cQ. Now, is it not true that when Mr. Catron came out to see you at the penitentiary, that he said to you that you ought not to testify to falsehoods against the Borregos, or words to that effect; that you had told Charlie Spiess that your testimony against the Borregos was false, and that you ought not to testify again against them? A. I don\u2019t think he ever said that.: I never told Mr. Spiess so at all.\n\u00a3\u00a3Q. Did he say anything of like substance? A. He said something to that effect. I told him I didn\u2019t testify to nothing that was untrue.\n\u201cQ. Didn\u2019t you then say to Mr. Catron that Mr. Spiess was your attorney at the time, you made this statement to him, and that Mr. Spiess ought not to use it, and that it would get you into more trouble? A. I don\u2019t remember any such conversation.\n\u00a3\u00a3Q. Didn\u2019t you say that the use off this matter, that you told Mr. Spiess when he was your attorney, had the effect to get a more severe sentence on you in your adultery case? A. I don\u2019t think I did.\n\u00a3\u00a3Q. Didn\u2019t Mr. Catron then insist that you should tell the truth in the Borrego case, as he understood it; and 'didn\u2019t you say that if you di'd they would get you for perjury? Didn\u2019t you ask Mr. Catron, in the course of that conversation, that if you gave testimony upon the second trial different from that you gave in the first trial, if they could not get you for perjury? A. I did.\n\u00a3\u00a3Q. And didn\u2019t he tell you that they could? A. He told me that they could not, if I did what he told me to do.\n\u00a3\u00a3Q. Didn\u2019t he say that they could not if you testified that it would criminate you if you testified? Did he not put that distinctly on the ground that your testimony on the first trial was false? A. He tried to make it appear that way.\n\u00a3\u00a3Q. Wasn\u2019t that the way he talked to you all the way through? A. No, sir.\n\u00a3\u00a3Q, That your testimony on the first trial was false? A. He did not.\n\u00a3\u00a3Q. Did he at anytime intimate to you that he believed the testimony you gave on the first trial was true? A. He intimated that it was' not true.\n\u201cQ. Didn\u2019t he insist that your testimony on the first trial was false, and that you knew it was false? A. He didn\u2019t say that I knew it was false.\n\u201cQ. Didn\u2019t he say to you, when you asked him if you gave testimony on the second trial that was different from that you gave on the first trial, that they could not get you for perjury? Didn\u2019t he say that they could, unless you testified that your testimony would tend to criminate, you? A. I asked him if I was going to make different evidence, if I did as he wanted me to do. I said, \u2018If I did that, could they get me for perjury?\u2019\n\u201cQ. What did he say? A. He says, \u2018Answer the questions as I told you, and decline to answer the others. \u2019\n\u201cQ. That is, to decline on the ground that it would incriminate you, or tend to criminate you? A. Yes, sir.\n\u201cQ. He then said to you that if upon that trial you did decline to answer, upon the ground that your testimony would tend to criminate you, that he would protect you? A. Yes, sir.\n\u201cQ. He made no suggestion to you upon that occasion that you should give any sort of testimony on the Borrego trial, did he? A. That I should give none; that I should give no evidence in the case.\n\u201cQ. And he put that distinctly upon the ground that if you did testify to the truth, as he understood it, that you would lay yourself open to an indictment for perjury? A. I don\u2019t recollect that he did.\n\u201cQ. Do you recollect that he did not? A. The way he said was, \u2018Now, if you go and testify ip this case, you will be indicted for perjury, because these Borregos are liable to come clear, and then they will get you for perjury.\u2019\n\u201cQ. Didn\u2019t you ask him, Mr. Nowell, and have you not said that you did ask him, that if you gave different testimony on the second trial from what you gave on the first trial, could they not get you for perjury? A. I did.\n\u00a3\u00a3Q. Didn\u2019t he' tell you then to decline to answer, upon the ground that your answer would tend to criminate you? A. I don\u2019t recollect that he asked me that way.\n\u00a3