THE OKLAHOMA LAW JOURNAL EDITED AND PUBLISHED MONTHLY BY D. H. FERNANDES, GUTHRIE, Oklahoma. June, 1912. VOL. 10. No. 12 THE LAWYER AND HIS MORAL DUTY. If the lawyer conceives of his professional work only as a means of making a livelihood, if he wholly identifies himself with his client's interests, and in all respects subordinates his own individuality to that of his employer, if he regards the number of cases won and the net. income for the year as the only standards of success, perhaps he will be little interested in and little perplexed by questions of public duty. But fortunately the Bar as a whole is unwilling to submit to such a view of the attorney's status and is not ready to accept theory that society has extended to certain of its members the privilige of following a high and responsible calling for the sole purpose of enabling them to make a living. While it may be true that in some measure we have, consciously, yilded to the commercial spirit, it is equally true that upon the whole we have been unwilling, in theory at least, to let go the great traditions of our profession by which we are primarily ministers of justice, and the emoluments which we receive are but incidents of a service deemed to be highly honorable. Tendencies there are. however, in our modern life, in the very nature of certain common forms of professional employment, and in our adversary system of trying out the facts, which unmistakably make for the practical abandonment of the idea that a lawyer performs official functions; made unless these are held in check, while the theory that he is an officer of the court may remain as a convenient fiction, the lawyer will in fact cease to be a public officer and become an agent only for interests wholly private. It is in the recogntion and discharge of the larger, though unfortunately less insistent, obligations to society implied in the official status of the lawyer that we are most in danger of falling short. Care must be taken lest we forget that before we became attorneys in the case we were responsible officers of the court and lest our proper loyalty to the truth give place to an immoderate and unrestrained zeal for the success of our client's cause, whether it be just or not. That in the matter of judicial perjury the lawyer must himself refrain from participation or instigation we all admit, but does mere inaction upon his part fully meet the demands of duty and absolve him of all responsibility for the prevalence of the evil? May not complacency sometimes fall dangerously near to complicity? And granting that the attorney does not engage to become the spiritual guide of his client or his witness, and rests under no obligation-to them-to restrain them from wilfully falsifying the facts, does it necessarily follow that his public duty extends no farther? If, as we have assumed, judicial prejury is widely prevalent, and if it pollutes the stream of justice and is a constant menace to the right administration of the law. can the bar remain inactive and be justified? These questions, espe cially as they relate to duty in its larger aspects as implied in the lawyer's official status, are of deep concern, and will I am confident, upon fair consideration, be ans. wered in the negative. To be sure, specific rules may not be formulated prescribing when and under what circumstances action shall be taken or what shall be done. Professional duty is often too delicate in its nature for articulation in formal rules. But with a just conception of our general responsibility, we may depend upon the monitions of a vigilant conscience and a high sense of honor for suggestions of appropriate action, as the occasion presents itself. But, rules or no rules, it is of prime importance that there be a realization of the grav ity of the evil and an aroused consciousness of our responsibility. The first great need is that the bar as a whole take an attitude and cultivate a spirit, not of resignation to the seeming inevitable, or of good-natured complacency, but aggressively hostile to the in trusion in any form of perjured testimony into our courts. It may wel! be, as is sometimes charged, that the courts themselves are in a degree to blame, in failing more often to direct criminal prosecutions where the offense is committed in their presence. A practical presentation of that subject would be of interest, but we are just now concerned with the distinctive responsibility of the bar. Not by way of defense of the courts, but to accentuate the point I urge, it may be remarked that of necessity who occupy the bench come very little into intimate retion with litigants and their witnesses, and the influence which they can exert is therefore in the main necessarily restricted to the formal proceedings that may properly be taken in court. But criminal prrosecutions for perjury are beset with the most serious difficulties, as any one who has had anything to do with them will read ily affirm, and unless reinforced by a powerful public sentiment make little headway in permanently dislodging a crime that has become strongly intrenched in custom. In a few instances, where the perjury has been committed in open court, as is most frequently ently the case, the offender has been proceeded against and summarily punished as for contempt, and doubtless a remedy of this character, if frequently invoked, could be made more effective than trials upon indictment before a jury. But if it be conceded that such a method of procedure is at present without legal objections, already there exists a strong popular current of antagonism to the power of the courts summarily to punish for con tempt without a jury trial, and unless such power is sparingly exercised it is in danger of being entirely withdrawn. My point is that, assuming all fidelity upon the part of the courts in inflicting criminal punishment, whenever practicable, the relief thus afforded is likely to be highly dissappointing. In the absence of a proper public sentiment, criminal prosecutions affords but a clumsy weapon and a remedy wholly inadequate against an offense so common, so insidious, and so difficult of the requisite degree of proof as that of prejury. Immeasurably more effective as a deterrent than verdicts of juries or the fulminations of the courts, are sanctions of a vigorous and uncompromising public sentiment, and so that source we must ultimately resort for substantial and permanent relief. In the moulding of such a sentimert the bar inay got improperly be looked to to take the nitative, and must necessarily play an important part, irst, by arousing its own membership to a realization of the need of greater circumspection in guarding against and greater activity in checking the evil practice; and second, by plainly manifesting to those with whom we deal as clients and witnessees an uncompromising attitude of inhospitality to any inclination to withhold or falify the facts; and then indirectly, through the press, from the pulpit and platform and in the schools and through other channels of information the general public must be reached and educated to a greater abhorrence of deception, fraud and falsification in any form. If it be thought that the program suggested is hopelessly expansive, I can only say that I know of no short cut or royal road to moral reform. Chronic maladies are rarely cured by the application of specifics, and criminal practices so widespread as to become immoral customs are not uprooted in a day. The judicial oath has come to have but little virtue. Its religious sanctions, always of limited efficacy, have almost entirely lost terrors, and not uncommonly the administration of the oath is looked upon as an idle form. Extract from recent Address delivered before the Washington State Bar Association by Hon. Frank S. Dietrich, U. S District Judge. CURRENT DECISIONS OF THE CRIMINAL COURT OF APPEALS OF R. D. MILTON, Plaintiff in Error, VS. No. A-1322 STATE OF OKLAHOMA, Defendant in Error. (Rendered June 6, 1912.) Appeal from Superior Court of Pottawatomie County. G. C. Abernathy, Judge. Affirmed 1. In a prosecution for forgery in the first degree the evidence is held to support the verdict, and that no reversible error was committed on the trial. 2. The granting or refusal of a continuance in a criminal case is largely a matter of discretion of the trial court, and this court will not reverse the trial court on the decision of a matter which rests in the sound discretion of the trial court, unless it is shown that there has been an abuse of the discretion. 3. Every court has inherent power to do all things reasonably necessary for the administration of justice within the scope of its jurisdetion. 4. The judge of a Superior Court has power to administer oaths, without an express provision therefor by statute. Syllabus by the court.) Statement of Facts. Plaintiff in error, R. D. Milton (hereinafter referred to as the defendant) was jointly indicted with one Felix J. Saxon and Eugene Walker in the Superior Court of Pottawatomie County for the crime of forgery in the first degree. The indictment was returned August 23, 1909, and the case continued from time to time until February 10th, 1911. When it came to trial as to the defendant Milton a severance having been requested and granted. The trial was concluded on February 15th, 1911, and resulted in a verdict of guilty, and on February 20th trial |