In re of Emmons

At all times mentioned in the record of this proceeding respondent was, and he now is, an attorney at law admitted to practice in the courts of California. On the sixth day of August, 1915, a petition for his disbarment was filed in the supreme court by a bar association of Kern County, and the matter was thereafter transferred to this court. The petition is based upon a judgment of conviction whereby the respondent was convicted of a felony for asking and receiving a bribe, and a duly certified copy of the judgment of conviction is attached to the petition and is a part thereof. That judgment was rendered on October 31, 1905, and on the twelfth day of March, 1908, was affirmed by the district court of appeal for the third district. The sentence was for five years’ imprisonment,, the remittitur was filed on May 18, 1908, and the term of actual imprisonment began a few days later.

The petition for disbarment is based solely on the judgment of conviction. Apart from that judgment no charge is made that the respondent has committed any act involving moral turpitude, dishonesty, or corruption, or any other act which would be a cause of disbarment. (Code Civ. Proc., sec. 287.) Separate and direct charges would require separate and direct proof, and would open the case to examination by means of other evidence which might be produced by those prosecuting the charge, or by the respondent. Even if (which we do not decide) the judgment of conviction would be receivable as evidence upon such separate charges, it would not be the sole and conclusive evidence provided in a proceeding based solely upon a judgment of conviction of a felony. (Code Civ. Proc., sec. 287, subd. 1.)

The respondent has filed herein certain objections which are in the nature both of a demurrer and an answer. We shall not find it necessary to discuss the demurrer. The answer sets forth that the conviction shown by the certified copy of the record of conviction annexed to the petition herein has been annulled and set aside in this,' that on the twenty-ninth day of June, 1910, respondent received from the governor of California a pardon for the offense set forth in the judgment of conviction. The respondent submitted to the court with his answer a copy, duly certified by the Secretary of State, of the above-mentioned pardon. This document sets forth by way of recital the fact that the defendant had been released upon. parole, and since such release had “proven himself to be an industrious, sober, and upright man”; and that the state board of prison directors by resolution recommended to the Governor of the state that he do extend executive clemency to the defendant. Thereupon the document concludes that the Governor does by virtue of the authority vested in him by law, “hereby pardon the said E. J. Emmons and order that he be restored to citizenship.”

It has been held that a pardon “releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.” (Ex parte Garland, 4 Wall. 333 , [ 18 L. Ed. 366 ].) This is nevertheless subject to the limitation that an attorney may be disbarred for acts of a felonious nature where a pardon has followed the conviction of a crime, since evidence of the criminal acts may constitute proof of the charge that the respondent is unfit to be an attorney at law. This is so for the reason that the pardon does not restore his good moral character. (Thornton on Attorneys, sec. 863.) Among the cases to which we are referred is that of People v. George, 186 Ill. 122 , [ 57 N.

In Scott v. State, 6 Tex. Civ. App. 343 , [ 25 S. W. 337 ], it was sought to obtain a judgment of disbarment founded upon article 226, Revised Statutes of Texas, reading thus: “No person convicted of a felony shall receive license as an attorney at law; or if licensed, any court of record in which such person may practice shall, on proof of a conviction of any felony, supersede his license and strike his name from the roll of attorneys.” The plaintiff in error had been convicted of a felony but immediately thereafter pardoned by the Governor, several years before this proceeding was instituted against him. The court said: “We are of opinion that after he received an unconditional pardon the record of the felony conviction could no longer be used as a basis for the proceeding provided for in article 226. This record, when offered in evidence, was met with an unconditional pardon, and could not, therefore, properly be said to afford ‘proof of a conviction of any felony. ’ Having been thus canceled, all its force as a felony conviction was taken away. A pardon falling short of this would not be a pardon, according to the judicial construction which that act of executive grace has received. (Ex parte Garland, 4 Wall. 344 , [ 18 L. Ed. 366 ] ; Knote v. United States, 95 U. S. 149 , [ 24 L. Ed. 442 ], and cases there cited; Young v. Young, 61 Tex. 191 .) Cases may be found holding that a pardon does not operate as a bar against a proceeding to strike an attorney from the rolls on account of the professional misconduct involved in the transaction which culminated in the conviction. (Sanborn (Penobscot Bar) v. Kimball, 64 Me. 140 ; In re........., an attorney, 86 N. Y. 563 .) In these eases the proceedings to disbar were not founded on -statutes like ours, declaring the effect of a felony conviction, but upon facts showing professional misconduct. Where the proceeding, as in this case, depends alone upon the felony conviction, and that is wiped out by a pardon, the whole case falls.”

The objections made by respondent are (as to the punts discussed herein) sustained and the proceeding is dismissed.

James, J., and Shaw, J., concurred.