[Civ. No. 2324. Second Appellate District.—December 7, 1917.]

In the Matter of the Application of FREDERIC M. SHEPARD for Reinstatement as a Member of the Bar of the State of California.

ATTORNEY AT LAW-DISBARMENT SMUGGLING OF OPIUM INTO UNITED STATES-ACT INVOLVING MORAL TURPITUDE.-Under subdivision 1 of section 287 of the Code of Civil Procedure, providing for the disbarment of an attorney at law upon his conviction of a felony or misdemeanor involving moral turpitude, an attorney convicted of the crime of conspiring to smuggle opium into the United States in violation of the act of Congress of January 17, 1914, is subject to disbarment.

ID.-DISBARMENT FOR FELONY INVOLVING MORAL TURPITUDE-NOTICE OF PROCEEDING NOT REQUIRED. In a proceeding for the disbarment of an attorney at law under subdivision 1 of section 287 of the Code of Civil Procedure, no notice is required to be given to the attorney, since it is provided by such section that the record of conviction shall be conclusive of his conviction of a felony or misdemeanor involving moral turpitude.

ID. CONVICTION IN FEDERAL COURT-DISBARMENT.-Under subdivision 1 of section 287 of the Code of Civil Procedure, an attorney at law may be disbarred for an offense against the federal laws for which he was convicted in the federal courts, notwithstanding the provision of section 288 of such code, which requires the clerk of the court in which the conviction was had to transmit the record to the supreme court, since said subdivision 1 makes records of conviction conclusive evidence regardless of their place of origin.

ID. REINSTATEMENT TO PRACTICE

PREMATURE APPLICATION.-An attorney convicted of conspiracy to smuggle opium into the United States in violation of federal law is not entitled to reinstatement for good moral character within a little over three years after the commission of the crime, two and one-half years after sentence, one year after his conviction became final, seven months after his disbarment, six months after he began his imprisonment, and three months after he concluded it.

ID. PURPOSE OF DISBARMENT.-Disbarment of an attorney for an offense involving moral turpitude is not punitive in character, but protective of the public and the legal profession.

APPLICATION originally made to the District Court of Appeal for the Second Appellate District for reinstatement to practice law.

The facts are stated in the opinion of the court.

D. M. Hammack, for Petitioner.

Frank C. Collier, for Los Angeles Bar Association, Respondent.

WORKS, J., pro tem.-In July, 1914, petitioner and one A. C. Brown committed the crime of conspiracy to import into the United States from Mexico eighty cans of smoking opium, and to receive, conceal, buy, sell, and facilitate the transportation, concealment, and sale of such opium, in violation of the act of Congress of January 17, 1914. Shepard and Brown were indicted for the offense by the federal grand jury, were tried, and were convicted. By judgment and sentence entered April 28, 1915, they were each condemned, by the district court of the United States in and for the southern district of California, to imprisonment for a year and a day in the state penitentiary at San Quentin. Shepard sued out a writ of error to the United States circuit court, ninth circuit, but his conviction was affirmed by that tribunal on October 4, 1916. He then sought a pardon at the hands of the national executive, but it was refused; although the President, after granting Shepard a respite expiring April 11, 1917, did commute the sentence to imprisonment in the jail of Los Angeles County for ninety days. Shepard entered upon the service of the sentence at the conclusion of the respite and was discharged July 9, 1917. Meanwhile, on March 5, 1917, a certified copy of the record of conviction was presented to this court in open session and Shepard was, on that day and without notice to him, disbarred. His admission to the bar of California was on December 6, 1909. This proceeding was instituted October 15, 1917.

The disbarment was ordered under the provisions of subdivision 1 of section 287 of the Code of Civil Procedure, to the effect that an attorney and counselor may be removed or suspended upon his "conviction of a felony or misdemeanor involving moral turpitude." It is contended that the disbarment was unjustified, for the reason that the crime of which Shepard was convicted does not involve moral turpitude and that, therefore, his reinstatement should follow. We shall make no attempt to define the term upon which this question

hinges, leaving it to be understood that the phrase itself has, without the aid of specific definition, a sufficiently clear meaning to enable us to determine whether the offense of Shepard comes within it. Counsel for the Bar Association characterizes a smuggler as one who makes endeavor to defraud the government out of the revenue derivable from the entry into the country of dutiable goods, and contends that the commission of such a fraud, or the formation of a conspiracy to commit it, is immoral and wrong to the extent that it necessarily involves moral turpitude. Counsel for the petitioner responds that smoking opium is not a dutiable article, and that it is denied admission to the United States, duty or no duty (and so it is), as if that fact lessens or wipes out any immorality which may fasten to the smuggler of dutiable articles. This question we will discuss later, as we now deal with the question of smuggling in general, as respects the matter of its turpitude or the lack of it. We anticipate our later discussion, however, to the extent of remarking that we shall now assume that the smuggling of opium into the country for smoking purposes is on at least as low a moral plane as the smuggling of dutiable articles with intent to defraud the government out of the revenue which would otherwise arise from importation. Returning to the question as to how we shall regard the smuggler, we may appeal to the popular feeling on the subject, for whether any act involves moral turpitude may with a great degree of safety be left to the estimation of a healthy-minded public concerning the act, unless, indeed, there be something like an equal division of opinion on the subject. Can there be any doubt as to the manner in which the smuggler is regarded by a vast majority of the public? It is not in fiction alone that smuggling is classed with piracy, for in the public mind the two are more or less closely associated. Certainly, we may say with confidence that in the popular estimation, and in truth, smuggling is a highly immoral crime against society and government. There is, of course, no difference, favorable to the petitioner, at least, between one guilty of smuggling and one guilty of conspiracy to smuggle.

How, now, is the smuggling of smoking opium to be regarded? The effects of the opium habit on the human system are generally understood, certainly in their salient features, but let us attend to a graphic description of the thraldom

under which the victim of the habit rests. We quote from the Americana, title "Opium":

"Indispensable as opium is in certain affections, in the hands of the thoughtless and weak it is too often a curse. It is the most seductive of all the narcotics. 'By its soothing and exhilarating influences it gains such a hold on the moral and physical nature that the strongest will is unable to emancipate the victim from its enchantment, and moral degradation results.' . . . Victims of the opium habit frequently become so demoralized as to need care in an asylum. They lie, steal, lose self-respect and ambition, are forgetful, may be subject to delusion, fear, and superstition, and are careless as to clothing and necessary habits, while still thinking highly of themselves. The great nerve-centers tolerate stimulation to a certain point. When the limit is reached, the time varying in different persons, the action of the various organs and tracts is disordered. The victim of opium suffers from imperfect digestion, faulty appetite and assimilation, and consequent malnutrition. . . . Primarily there is functional derangement of the brain, then permanent deterioration. He becomes a slave to his depraved appetite. When the time draws near for his allotted dose he is nervous, yawns, may have neuralgia, is weak, breaks out into a perspiration, and is miserable. He takes his dose, and is himself again; but after a time the dose has to be increased, and if relief from his craving is not obtained, he sinks lower and lower and dies a wretched death.'

What would be the popular opinion concerning Shepard if it became generally known that he had delivered opium to innocents whose lives, through his acts, might become such as are here depicted? And yet, in the commission of the crime of which he stands convicted he evinced the possession of the will, and even of the intent, in effect, to do that very thing, for the result of the carrying out of such a conspiracy as that in which he engaged would make it possible for others directly to make distribution of the poison. Truly, it seems a travesty to insist that acts such as these are to be differentiated, in a way favorable to the petitioner, from the mere maiming and stabbing of the body with deliberately formed purpose and intent to wreak harm and injury upon it. We conclude that among the elements of Shepard's crime was a high degree of moral turpitude.

It is insisted that this court had no jurisdiction to remove Shepard's name from the roll of attorneys without notice. Section 287 of the Code of Civil Procedure provides that where an attorney is sought to be removed for conviction of a felony or misdemeanor involving moral turpitude, "the record of conviction shall be conclusive evidence" upon the question before the court. This provision is contained in the first subdivision of the section, the other subdivisions referring to removals or suspensions for other causes. Section 289 provides that "The proceedings to remove or suspend an attorney and counselor, under the first subdivision of section. 287, must be taken by the court on the receipt of a certified copy of the record of conviction." It is also, to the effect that proceedings under some of the other subdivisions, naming them, "may be taken by the court for the matters within its knowledge, or may be taken upon the information of another." Section 290 provides: "If the proceedings are upon the information of another, the accusation must be in writing." Section 292 is, in part: "Upon receiving the accusation, the court shall make an order requiring the accused to appear and answer it at a specified time, and shall cause a copy of the order and of the accusation to be served upon the accused at least five days before the day appointed in the order."

Under these sections proceedings for removal or suspension are divided into two classes. The first of these includes, alone, proceedings based upon convictions of felonies or misdemeanors, involving moral turpitude. The second class includes two subclasses, first, those proceedings to be taken for matters within the knowledge of the court, and, second, those which may be taken upon the information of another. Certainly, it appears to us, whether notice is required in proceedings under both subclasses of the second class or whether it is not, it is clear that no notice is required in proceedings of the first class. The provision as to proceedings of that class, to the effect that the record of conviction shall be conclusive evidence, is strongly persuasive of the question, alone; and when we look to section 292, which provides with particularity for notice in certain cases, all doubt vanishes. That section does not require notice in a case such as we now have before us. In every case, under section 292, a copy of the accusation must be served on the accused, and there can be