Matter of Emmons

CONBEY, P. J.

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.)

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The petitioners having relied upon such judgment of conviction as the sole foundation for this proceeding, that judgment is conclusive against the respondent if it is admissible in evidence. If it is not admissible, the case against respondent must fall, because no other evidence can be received, in this proceeding.

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.”