People v. Boutcher , 89 Colo. 497 ( 1931 )

THE Attorney General, on leave granted, filed a petition in disbarment against J. H. Boutcher, an attorney at law. An order to show cause was entered, respondent answered, and this court appointed one of its members, Honorable Julian H. Moore, as referee, who, after taking testimony in the matter, made his written report to the court. The referee finds respondent guilty of gross professional misconduct in the practice of law in this state as charged in the petition. Respondent has filed his objections to such report, and the matter is now before us for final determination on such report and the objections thereto.

The referee's report, omitting the title, is as follows:

"Referee's Report.

"Upon recommendation of the grievance committee of the Colorado Bar Association and by direction of the Supreme Court, the Attorney General, on the 27th day of January, 1930, filed a petition charging J. H. Boutcher with gross professional misconduct, as follows:

`1. On, to-wit, August 1, 1927, at Denver, Colorado, respondent caused and procured and aided and abetted in causing and procuring Anna Stokes, Melissa F. Hogue and John H. French to sign, and they did sign, their names as witnesses to an instrument of writing purporting to be the last Will and Testament of L. H. Fordham. Said instrument of writing was dated July 12, 1924, and the certificate of witnesses on such instrument, together with the signatures of said witnesses, is as follows:

`Signed, sealed, published and declared by the said L. H. Fordham, the said testatrix, as and for her last will and testament, in the presence of us, who, in her presence, and in the presence of each other, and at her request have signed as witnesses hereto this 12th day of July, 1924.

`Anna Stokes 1627 Lawrence Street `Melissa F. Hogue 1627 Lawrence Street `John H. French 1314 Gilpin

`Said L. H. Fordham was not present at the time said witnesses signed said instrument, and this fact respondent well knew.

On, to-wit, July 28, 1927, the clerk of the probate court of Garland County, Arkansas, issued to Thomas L. Bonfils, as clerk of the county court of the City and County of Denver, State of Colorado, a commission to take the depositions of said Stokes, Hogue and French, in proof of the execution of the aforesaid instrument by said L. H. Fordham as her last Will and Testament, and thereafter, and on, to-wit, August 16, 1927, respondent caused and procured and aided and abetted in causing and procuring said Stokes, Hogue and French to appear before the said Bonfils at his office in the court house in Denver, Colorado, and then and there under oath to give their depositions in proof of the execution of said instrument by said L. H. Fordham as her last Will and Testament and then and there to sign and swear to a typewritten statement concerning said instrument as follows:

`Proof of Will'

`State of Colorado ss `City and County of Denver,

`In regard of the probating of the will of the late ss L. H. Fordham,

`Personally appeared before me Thomas L. Bonfils, Clerk of the County and Probate Courts of Denver County, Colorado, Anna Stokes, Melissa F. Hogue and John H. French to me well known, who being duly sworn, say: that they are the subscribing witnesses to the foregoing instrument of writing purporting to be the last will and testament of L. H. Fordham, deceased; that said instrument was executed at the time, place and by the person therein named; that said L. H. Fordham, the testatrix was at the time of signing said instrument upwards of twenty-one years of age, and of sound and disposing mind and memory, and that in the presence of all of these affiants she declared it to be her last Will and Testament and subscribed her name thereto in the presence of all of these affiants; that at the request of said Testatrix, affiants wrote their names to her said Will in her presence and in the presence of each other; that the subscriptions to the foregoing instrument of writing are genuine, and that the said instrument which is hereto attached is the identical one that affiants so witnessed and saw the said L. H. Fordham sign.

`Anna Stokes `Melissa F. Hogue `John H. French.

`Subscribed and sworn to before me this 6th day of August, 1927.

`Thomas L. Bonfils, Clerk County Court, City County of Denver, (Seal) State of Colorado.

`The foregoing statements of said Stokes, Hogue and French that said instrument was executed at the time, place and by the person therein named; that in the presence of all of said affiants said L. H. Fordham declared said instrument to be her last Will and Testament and subscribed her name thereto in their presence; and that at the request of said Fordham affiants wrote their names to her said Will in her presence, were each and all false in every particular and were then and there known by respondents to be false.'

"Pursuant to a rule to show cause, on March 5, 1930, respondent filed his answer thereto wherein he denied gross professional misconduct and alleged:

`That the said witnesses mentioned appeared before the said Thomas L. Bonfils at his office in the Court House, at Denver, Colorado, of their own free will and volition through the influence or instigation of some other person or party to this respondent unknown. That this respondent appeared at the time and place of the taking of said depositions in proof of the execution of the purported will in said paragraph mentioned, as the attorney and advisor of and at the request of Doctor Walter Fordham and for no other purpose whatsoever, and merely to see that the formalities incidental to the taking of the testimony and proof of the will were complied with.'

"He further alleged, in substance, that he had no knowledge or information concerning a purported will of L. H. Fordham until a few days before he appeared with the said witnesses before Thomas L. Bonfils, Clerk of the County Court of the City and County of Denver at the request of and as attorney for W. F. Fordham; that on or about the 6th day of August, 1927, W. F. Fordham brought the said three witnesses, Anna Stokes, Melissa F. Hogue and John H. French to his office; that prior thereto he had neither seen, spoken to nor met Anna Stokes; that he knew the witness John French prior to that time and had met the witness Melissa Hogue through Fordham; that all of the witnesses were friends of Fordham who had procured them to sign the Will without any knowledge on the part of respondent; that the only service rendered by respondent was the presenting and introduction of said witnesses to Thomas L. Bonfils, Clerk of the County Court; that respondent had no reason to doubt the genuineness of said Will and believed it to be a legal document; that some six months later he was informed that the will was forged and that this was the first time he was ever in doubt as to its genuineness and thereafter became suspicious of its validity and so informed L. J. Stark, an attorney of Denver who was retained by the Consul of Switzerland to investigate the validity of the will.

"Upon the issue so framed, the matter was set down for hearing and heard by your referee on the 28th day of November, 1930. Thereat witnesses were sworn who testified to the bad character and reputation of Anna Stokes and Melissa F. Hogue. Other witnesses, namely, Philip Hornbein, Otto Freidrichs, A. B. Manning and Gilbert McDonough, members of the Colorado Bar, testified that respondent was a lawyer of good reputation, of honesty and integrity. Respondent testified in substance as alleged in his answer. Depositions of Anna Stokes and Melissa F. Hogue, taken on oral interrogatories on May 16, 1930, at Long Beach, California, pursuant to stipulation, were offered and received in evidence. Both deposed that the three subscribing witnesses signed the will several years after July 12, 1924, its alleged date, in the absence of the testatrix and in the presence of each other and of respondent and W. G. Fordham; that respondent assured them that it was proper to then and there sign said instrument and that later respondent accompanied them to the Court House and was present when they appeared before Thomas L. Bonfils, Clerk of the County Court, and signed the "Proof of Will" affidavit in question.

"At the close of the hearing, respondent was allowed five days in which to submit affidavits concerning the general character and reputation of Anna Stokes and Melissa F. Hogue. Such affidavits were filed by A. B. Manning and John R. Walker.

"Based upon the foregoing evidence, the referee finds that respondent has been and is guilty of gross professional misconduct in the practice of law in this state as charged in said petition.

"Julian H. Moore, "Referee."

The substance of respondent's objections to the report of the referee is, "That the Referee's findings and conclusions of necessity have been based on the testimony of two witnesses, Melissa F. Hogue and Anna Stokes." The remaining portion of the objections are argumentative, to the effect that we must disbelieve or disregard the testimony of the above named witnesses, whose depositions were read, because their credibility has been impeached. There is little, if any, attempt to contradict the proof that the declarations in the attestation clause of the purported will of the late Mrs. Fordham were false, or that the testimony with reference thereto given before the clerk of the county court of the City and County of Denver was perjured. This seems to be conceded. The question before us pertains to respondent's alleged participation in the offense as charged.

[1] 1. The extent of the reliance to be placed on the testimony of accomplices is settled in this state by a line of unbroken decisions of this court beginning with the second volume of our reports and continuing to the eighty-seventh. Solander v. People, 2 Colo. 48, 67; Hoffmanv. People, 72 Colo. 552, 559, 560, 212 P. 848; Hamiltonv. People, 87 Colo. 307, 309, 287 P. 651. The rule is stated by Mr. Justice Campbell in Hoffman v. People,supra, at pages 559 and 560, as follows:

"The defendants' counsel asked the court to instruct the jury to the effect that the defendants be found not guilty because the only evidence of guilt was the uncorroborated testimony of an accessory or co-defendant. Such is not the law in this jurisdiction. (Citing cases.)

"The court properly instructed the jury to receive such testimony with great caution. Our decisions, ever since the Solander case, are to the effect that one may be convicted upon the uncorroborated testimony of an accomplice, but that it must be clear and convincing, must be received with great caution, and show guilt beyond a reasonable doubt."

We have not denied respondent the benefit of the above rule, but on the contrary have freely accorded it to him, and have not reached our conclusions without due consideration.

[2] 2. In Hamilton v. People, supra, we said at page 309 of the reported case: "It is admitted that the testimony of one accomplice was corroborated by that of another. When corroboration is required this is sufficient.Tollifson v. People, 49 Colo. 219, 112 P. 794."

We apply the above quotation to the depositions of Hogue and Stokes. They agree in essential particulars. Each tells her own story in her own way and in her own language. Each supplies details, some of which are omitted by the other. Some of these incidents are trifling in themselves, but they go to complete the perfect picture. The evidence of the witnesses Hogue and Stokes is such as to exclude any thought that they were coached or that their testimony was manufactured. The truth of their statements is also corroborated by surrounding facts and circumstances. These considerations have all entered into our judgment, as they must have done in the hearing before that arm of this court, the grievance committee of the Colorado Bar Association, and also later before the referee.

3. We have not overlooked the testimony of respondent's witnesses to the effect that the reputations of Hogue and Stokes for truth and veracity are bad, but if this be so, it has a double aspect. Such characters naturally would be sought after to lend their sordid talents to the commission of perjury. No other kind could have been procured. A person with habits of veracity would have indignantly scorned such an invitation.

We do not agree with respondent's counsel that to find him guilty will place honorable lawyers at the mercy of vindictive or unscrupulous clients or witnesses. Each case must be determined on its own facts and there is at least food for sober reflection in this observation of Dean Wigmore: "We have long since passed the period (as a modern judge has pointed out) `when it is possible to punish an innocent man; we are now struggling with the problem whether it is any longer possible to punish the guilty'." 1 Wigmore on Evidence (2d Ed), § 21, p. 210.

4. The effect would be disastrous if we should depart from the rule of evidence which we have quoted fromHoffman v. People, supra, and declare the testimony of accomplices inadmissible, or reach the same result of exclusion in argument by disparagement or by wholly discounting the probative force of such testimony. Such methods would aid in the perpetration of crime and insure immunity from punishment, so that the more odious the offense, the more impossible it might be to convict. As only one instance, it would place the law of descents and distributions under the domination and control of unscrupulous persons, who, at their will and pleasure, might easily beggar widows and orphans or other lawful heirs. It is unthinkable. For a lawyer to be engaged in such a pursuit is a menace to the public and estranges him from an honorable calling. The portrait as a whole, as presented by the record, is inconsistent with any conclusion other than that the charges against respondent have been amply sustained.

Respondent now goes by the name of J. H. Boutcher; his name so appears on his letterheads, but he applied for admission to practice law and signed his oath of office under the name of Jacob H. Butcher. His name so appears on our roll of attorneys. We make this statement only for the purpose of identification.

[3] The objections to the report of the referee are overruled and the report is approved. It is the further judgment of the court that respondent's name be and hereby is stricken from the roll of attorneys and that he be and is disbarred from the further practice of law in this state.

Respondent disbarred.

MR. JUSTICE MOORE, who acted as referee, does not participate in the decision of the court. MR. JUSTICE BUTLER and MR. JUSTICE HILLIARD dissent.