author: Hale, J.

text:
    (Eighth Circuit—Cuyahoga Co. O., Circuit Court
    Jan.Term, 1899.)
    Before Caldwell, Hale and Laubie, JJ. (Judge Laubie of the Seventh Circuit taking the place of Judge MarviD.)
    IN THE MATTER OF THE PROCEEDINGS AGAINST FRANK E. DELLENBAUGH.

      Findings of the Court.

    As to the second specification, relating to the action of Judge Dellenbaugh in hearing and determining the Manning divorce case, it appearing from the evidence that in this matter he assumed to act in a judicial capacity, held, that this court has no jurisdiction, and the remedy lies with the General Assembly, by way of impeachment.
    (For the decision of the questions of law in this case, see, ante, page 106.)
   Hale, J.

In the matter of'the proceedings against Frank E. Dell-enbaugh for disbarment.

There was a sufficient discussion of the law applicable to the case in passing upon the demurrer, by my associate, and there will be no further discussion of the law.

In considering the evidence submitted on ^ the trial of this case, we have found no fact against the respondent which was not supported by evidence clear and convincing.

We regard the case more in analogy with a criminal proceeding than a civil action, and have endeavored to give to the respondent the benefit of any real uncertainty arising out of a fair, careful and candid consideration of the evidence. More than this, no fact has been found against the respondent that has not only received the assent, but the approving judgment of each member of the court. We believe that we fully appreciate the gravity of the charges made and the care with which every step should be taken in the consideration of this case.

The statute under which these proceedings are instituted is section 563:

“The supreme court, the circuit court, or the court of common pleas may suspend or remove any attorney at law from office, for either of the following causes: misconduct in office, conviction of crime involving "moral turpitude, or unprofessional conduct involving moral turpitude.’’

That is as far as we need to read the statute,

The charges made are under the first and third subdivisions of the statute which I have read. The respondent is charged, first, with having been guilty of misconduct in his office as an attorney at law of the state of Ohio; and,secondly, with having been guilty of unprofessional couduct involving moral turpitude. The facts relied upon in support of these charges, are embodied in three specifications of facts.

Specification first is, in brief, and in substance, that the respondent Dellenbaugh was, on or about the 30th day of January, 1895, employed by one Edith Manning as her attorney to render to her his professional assistance in relation to matters growing out of the alleged illicit relations between her husband, George A. Manning, and one Jane Doe; that after said retainer and while he was in the discharge of his duties incident thereto, the respondent was, on April ‘22, 1895, appointed to and assumed the office and duties of judge of the court of common pleas of the third subdivision of the fourth judicial district of the state of Ohio. That notwithstanding such appointment the respondent continued to act, under his retainer, for Mrs. Manning. That about the 1st of July, 1895, he associated with him Vernon H. Burke,an attorney at this bar. That on or about the 6th day of July, 1895, Burke,by the solicitation and at the request of the respondent, wrongfully, corruptly, and by threats of exposure of the illicit relations between Jane Doe and Manning, and by promises to shield her from' exposure, obtained from her, the sum of ten thousand dollars wrongfully and corruptly. It is conceded that the sum of ten thousand dollars was obtained; five thousand of it paid in cash, and notes for the remainder taken, Of the five thousand dollars, ultimately Mrs. Manning received two thousand dollars, — and Burke, or Dellenbaugh and Burke, received three thousand dollars.

We refrain from entering into as full discussion of the evidence in support and denial of the facts of this specification, as might be done, for the reason that the facts therein contained, are relied upon to support the charges made against Burke growing out of the same transaction, who has not yet been beard in his defense.

Something, however, must be said as to the respondent’s connection with that affair.

Both the respondent Dellenbaugh and the witness Burke have given their testimony before ' us. The respondent’s statement is to the effect that at the time he assumed the office of judge of the court of common pleas on the 22nd of April, 1895, he withdrew from the case of Manning v. Manning and turned it over to Burke, and thereafter had ■nothing whatever to do with the case. While Burke says that he was first called into the case on or about the 6th day of July, 1895, and that before that time he had no knowledge of the existence of such a case.

If we can rely upon the testimony of witnesses seemingly disinterested, neither of these statements can be strictly true.

It is conceded that Christian, a detective, was employed as a detective in the case, by the respondent Dellenbaugh. The time of that appointment is fixed by the respondent to have been on'or about the 1st day of April, 1895; while the detective’s testimony is to the effect that he was employed on the 29th day of April and subsequent to the time that Judge Dellenbaugh assumed his office as judge of the court of common pleas.

Christian, in the prosecution Of his employment as a detective and while engaged in that employment as we understand, was arrested and brought before the mayor of the village of Glenville, and on a plea,of guilty'a fine and costs were assessed against him. This was on the 18th day of June, 1895. The next day after his arrest and after the fine had been assessed, both Dellenbaugh and Burke appeared before that official, and asked the release of the fine or judgment against Christian for the reason that he was employed by them and was in the legitimate prosecution of that employment — either employed by one or both. Each attempted to say that he went to see the mayor, and that the interview was had at the instance of the other.

The more reasonable supposition or the more reasonable conclusion from the evidence, is, that each was there because of his interest in the case in which Christian was engaged,.

Further Christian testifies that his first acquaintance with Mrs. Manning was an introduction to her in the criminal court-room by Judge Dellenbaugh. There was, according to the testimony of Christian'and Burke, a meeting at the Kennard House, in which were present Burke, Christian and Dellenbaugh, and the subject matter of dealing with Jane Doe was .there discussed to some extent — Christian and Burke both testified to that meeting; it is denied in toto by Judge Dellenbaugh.

We have, in the consideration of this testimony in which these two parties are so vitally interested, thought it safer to take the testimony of the third party, who had apparently no interest in the case. We are inclined to think that Judge Dellenbaugh is mistaken as to there being no such meeting at the Kennard House.

Again, as showing the connection of the respondent with the case, the money, as I have said before, came into the hands of Burke. Some of it was handled by the respondent Dellenbaugh; there isa difference as to how it came into his hands. It was by checks,drawn by Burke, payable to the order of Mrs, Manning, Those checks were endorsed by Dellenbaugh as attorney in fact for Mrs. Manning, and drafts and certificate of deposit obtained and forwarded to her. He settled with Christian — receiving the money from Mrs. Manning to do so. His statements befpre the investigating and trial committees, which he has corrected on this trial, give some countenance from his own lips to the fact that he was engaged in the case .later than he now says. In particular before the trial committee he referred to what is known as the Russell-Glenn affair, fixing on that event which be now says, learning that it occurred long after he went upon the bench, leads him to say that he was mistaken in referring to it as one of the events that he was cognizant of. It would seem a little unnatural that the time should be the prominent thing rather than the event.

Again, the parties are at. issue in the testimony whether Judge Dellenbaugh received any portion of the three.thous- and dollars or of the thirty-three hundred dollars which, was ultimately retained by Burke. Upon that issue we have, not only the statement of Burke as to the payment by him, and the manner in which it was paid to Dellenbaugh, but he produces a check of one thousand dollars' drawn upon the same day that the settlement was made; the check shows that it was paid. There is no evidence so far as we remember, outside of the check itself as to just when it was paid, but, perhaps, the fair presumption is that it was paid at its date. If that thing is a fiction, the bank books would show something about it, whether Burke drew or did not draw upon that day the currency from the bank. There is no-attempt to controvert that fact. Whether there is anything in the fact that would be of any service whatever, I am not prepared to say, because there is no evidence upon that point; but the fact that Burke in connection with his testimony produces a check that was actually paid, is of some value.

Then, soon after this matter received its first airing through the newspapers, there was a meeting of the friends of Judge Dellenbaugh at the office of Wilcox, Collister & Hogan. There were two meetings in that office, At the first, several witnesses testified as to what Judge Dellen-baugh said, and they differ as to the statements he is said to have made. On the second occasion there were present Collister, Hogan, Henry and Dellenbaugh; they were then, at that time, interested for Judge Dellenbaugh; and they, Collister and Hogan both, say that he not only said that he had received one thousand dollars, but that he fortified it by saying that he had done the work in the case, and was entitled to it — that the work was done in the case, all but the finishing touches.

Now, looking to all the circumstances surrounding that transaction, they point in the direction that the respondent did get a portion of that money. In this we are not, as it will be seen, relying on the testimony of Burke only, who it is claimed is impeached by statements made out of court as detailed by witnesses, differing from those made, on the trial. That'testimony, of course, was incompetent as tending to establish or negative the main fact as to whether he did or did not receive it. It is only competent to affect the value of Burke’s testimony, and was admitted for that purpose alone. To what extent there was any substantial contradiction of facts, we need not discuss.

No one fact found by us rests upon the unsupported testimony of Burke who, of course, is deeply interested in the outcome of this transaction.

We find, however, that upon this question, his testimony is supported by the circumstances of the case, and also by the admissions of the respondent.

So that we think that down to the time of the receipt of this money Judge Dellenbaugh was not keeping entirely aloof from the case. Burke’s testimony, however, that he knew nothing of the case until July 6th, seems to be contradicted by other testimony upon which we ought to be able to rely. Miss Kent’s statement is that a day or two, or a very short time before Judge Dellenbaugh took his place upon the common pleas bench, she with Mrs. Manning went to his office; that Mrs. Manning was there told by Dellenbaugh that he must withdraw from the case, that he would put it into the hands of Burke; that they thereupon went to Burke’s office where Mrs. Manning was introduced to Burke, and that thereafter they frequently visited the office of Burke during the months of May and June, and witness Talcott says that his office adjoined that of Burke’s,having the same reception room; that these parties at some time, Mrs. Manning and Miss Kent, were frequently at Burke’s office over a period of a month or two — but of course, that may have been later, But after the receipt of this money and its distribution there was no call for the frequent visits of Mrs. Manning to Burke’s office.

And we are inclined to think and to hold that during those months she was to some extent visiting Burke’s office, and that he had something to do with the case.

But, coming to the facts immediately connected with the transaction in which the money was obtained from Jane Doe, what is the evidence? Except what may be gathered from the testimony of Christian, and the circumstances some of which I have referred to-, the witnesses, who knew about what took place just prior to, and during the time and immediately after that event, are the respondent Del-lenbaugh, Burke who is jointly charged with the wrong then committed, and Miss Kent. Burke says the arrangement under which he went to see Jane Doe, was made in the criminal court-room at a meeting in which Mrs. Manning, Mis3 Kent,-Judge Dellenbaugh and himself were present; that they discussed the situation,and he was, either at his own motion or at the suggestion of the judge,the one who went to see Jane Doe, discussed the matter with her, received from her a proposition of settlement, reported the result of the interview back to the meeting that he had left, .and after much discussion it was agreed that the proposition that had been made should be accepted, he having arranged for a meeting at his office the next morning with Jane Doe. While Miss Kent says that at Burke’s office there was a meeting between herself, Mrs. Manning and Burke, in which they went over the reports which the detective had received, and there it was agreed that he from that place ■ should go to see Jane Doe; that Burke- left, did go, returned to the same place, and reported the result of the interview with Jane Doe; and that there they discussed the propriety of making a settlement; the next morning a meeting was had at the office of Burke, and the whole matter closed up, and that Dellenbáugh was not there at all. Miss Kent's testimony is not-entirely satisfactory to the court, but she is the only really disinterested witness to that transaction — to the immediate facts of the transaction.

After giving as careful review of this as we are able, and under the rules that I announced that we have adopted, if the fact of the respondent’s connection with this transaction of obtaining this money was to be determined by a mere preponderance of the evidence, we should not hesitate •to hold him equally responsible with Burke; but there is such conflict of the evidence produced that we do not feel justified in finding that his responsibility for that particular transaction is established by clear and convincing evidence.

As to the second specification, we overruled the demurrer to the specification, for the reason that.it is alleged that all that was done on the hearing and the determination of the ■divorce case, was done by him as the attorney of Mrs. Manning and was in no sense a judicial act.

' On the evidence produced, we hold that in the trial of that case, he acted or assumed to act in his official capacity as a judge, and that the remedy for any misconduct or wrong done in connection therewith, should be in another "tribunal.

Specification Third. Specification third is, in substance, that on the 28th day of October, 1896, the respondent Del-.lenbaugh pretended to hear and decide the divorce case of Ediih Manning against George Manning.. That all the time be was the real attorney in the case, although Burke, at his instance, was acting as the ostensible attorney for the plaintiff. That on and prior to this time there was no entry of the case upon the trial docket of the court, nor was there any entry of the case upon any of the dockets kept in the office of the clerk or by him, and no entry was made by respondent indicating that ihe case had been heard and tried upon any docket, the only entry having been made upon the file wrapper containing the papers. And very soon thereafter, Judge Dellenbaugh’s official term as judge of the court of common pleas expired, at which time no journal entry had been entered upon the journal, That thereafter, respondent corruptly conspired with or instigated Burke to get upon the journals of the court a decree of divorce. That after an attempt through Burke to get upon the journals a decree not authenticated by any judge, and after tbe refusal of the three judges,or at least one of them, to authenticate such journal entry, and a refusal by said judges to allow said entry to be made, the respondent after the expiration of his term of office and while a practicing attorney, caused another decree to be prepared, which he endorsed “O. K., Dellenbaugh, Judge,-” which he took to the clerk to whom he falsely stated that the journal entry then produced was the original entry prepared in the case, and was by him, while judge, during his term, endorsed as therein produced, and against the positive orders of one of the judges at least, induced and procured the clerk to enter said decree upon the said journals of said court. The entry was made upon a blank space on the journal of date of October 28, 1895.

We are constrained to say that there is a web of wrongdoing running through this whole transaction.

Evidence is produced on the part of the prosecution, that Dellenbaugh first was solicited on behalf of Mrs. Manning to obtain for her' a divorce. The witness Hickox testifies that he saw Judge Dellenbaugh for that purpose, inquired whether he would take a divorce case,and whether he would take Mrs. Manning’s case. That afterwards, he being told by Judge Dellenbaugh that he must see Mrs. Manning before deciding, went with Mrs. Manning to Dellenbaugh’s office, and there introduced her to Dellenbaugh and left. The judge says that he was introduced to Mrs. Manning by Mrs. Robinson of Pittsburg, at which time both Mrs. Robinson and Mrs. Manning were strangers to him; he ignores the entire facts testified to by Hickox.

It seems to us that there has been, an undue effort to get away from the divorce case and to bring into prominence the case for the alienation of affections.

If we can rely upon the testimony of Hickox, the original start was for a divorce. However, we have shown, most clearly we think, that the respondent kept a watch over the case of Mrs. Manning from the beginning, or until the ten thousand dollars was received and destributed. The evidence is such in the case, that we are compelled to find that the respondent knew of the commencement of the divorce case; that he was cognizant of the most extraordinary efforts and proceedings taken to keep the case from the public, including the substitution of the name of Webster as an attorney in the divorce case. He was, undoubtedly, informed of the agreement to shield Jane Doe from exposure, and as a part of the plan to carry out that agreement the case was heard in the manner disclosed by the evidence' — I mean the divorce case, without a single entry upon any of the dockets or records of the court indicating that any such case was pending. There was a trial such as it was, and a memorandum made on the file wrapper containing the papers, and this is all.

In this way the case was left when Judge Dellenbaugh left the bench. The journals of the court were then under the control of the then judges of the court. It was for them to determine what journal entries should and what should not go upon the records of the court. If, on investigation, the judges had ascertained all the facts concerning the divorce case of Manning v. Manning, as disclosed upon this trial, they would have been fully justified in keeping from the records of the court that decree, and insisting that the case be set down for trial, and the case regularly tried.

Judge Dellenbaugh’s official term had expired, and he had no official authority over any of the court records.

It is conceded that there was an effort at some time to get a journal entry on tbe journal that had not been O.. K.’d.

Judge Lamson says that he was in room one at the January term, 1896, and it came to his knowledge through the-clerk that there was an attempt to put upon the journal such, an entry, which he stopped. Judge Ong succeeded him in room one at the April term. It is beyond dispute that Burke went to the clerk with a decree not authenticated or O. K.’d. The clerk referred him to Judge Logue who was. in room six; he interviewed Judge Logue, who refused to-make the entry by which the journal could be properly made. He returned to the clerk. The clerk thereafter took the journal entry himself, went to Judge Logue— some of. the testimony showing that Mrs. Manning was with, him; the clerk does not remember that she was. Judge Logue still refused to allow the entry to go upon the journal, but suggested that they consult Judge Ong who was in room one, which was dons, and he not only refused, .but directed that it should not be journalized. Thereupon the clerk handed' the journal back to Burke with the instruction that none of the judges would authorize its entry. After that Judge-Dellenbaugh brought to the clerk a journal entry having; upon it “O. K., Dellenbaugh, Judge.” He stated to the clerk that that was the original entry drawn; that it had been O. K.’d by him while upon the bench, and was all. regular and should be entered. The clerk said to him ‘‘Well, that obviates all objections, and I will enter it.”' But he afterwards saw Judge Ong who again told him (the-clerk) to keep it from the records.

It is conceded that there was this controversy over getting this journal entry upon the records. When did it take-place? In the first place, Judge Logue says he was in-room six when that happened. He was in room six in November and December, 1895, and in room six, April1 term, 1896. Judge Ong was in number one at the April-term, 1896. Judge Lamson was in number one at the January term, 1896. It seems to us very plain from the-statements of the judges, that that controversy to'ok place-at the April term of 1896.

Judge Dellenbaugh’s explanation and statement to us is,. that on the day the case was heard before him, or on the following day, a journal entry in the Manning case was handed him which he O. K.’d and gave back to Burke. That after the effort was made by Burke to get the first journal entry recorded, he succeeded in finding this original journal entry in the office of Burke, and took it to the clerk with the statement above quoted.

Now, both of these journal entries are typewritten. The-stenographer who took the entries in short-hand and wrote them out upon the typewriter, says that the ' first journal entry, the one that was not 0. K.’d, was made between the 12th of October and the 11 of November, and she produced her note books at the time her deposition was taken. This journal entry is an exact literal copy of the journal entry produced here upon the trial that was not O. K.’d, letter for letter. The second decree, according to the testimony of the stenographer, was dictated to her between the 10tb day of April and the 16th day of April, 1896, and that, too, is an exact copy of the decree that bears the authentication of Judge Dellenbaugh.

There is no effort made to impeach these statements -of the stenographer, or to show that there is any mistake-about it, or that there is anything suspicious about her notebooks. It corresponds with the recollection of Ong and Logue. This is not all. This case had its number 53176-at the time of its commencement; it went upon no indexes or docket kept in the clerk’s office. The journal entry finally goes upon the record, and is indexed with those cases-that had their origin in the summer of 1896

This particular case, we think from the testimony, was-indexed from the journal to the appearance docket by Nicholas, and he began that indexing in April, 1896, if we have the testimony correct.

On. the alphabetical index, the cases before 53176 are-numbers 56079 and 56080, commenced in May, 1896; the one after, number 56427, bears the date of commencement July 1st, 1896. It was transferred to an execution docket that was commenced the latter part of July or the first of' August, 1896. It is said that this journal is in the handwriting of Brown, a witness. It is on a space left in the-journal. Brown testifies to having made some mistake in the paging of the journal, and correcting it afterwards. It is shown that the cases upon the pages before'and after the Manning case have not been changed.

White, Blandin, Hills and Hadden, for Prosecution.

Ingersoll, Boynton and Hogsett, for Respondent.

It is said that a man by the name of Ewing who was the bailiff in Judge Dellenbaugh’s room at the time the divorce was heard, received this journal entry and handed it to Judge Dellenbaugh. We have not the slightest idea that Ewing remembers this particular case, from his own testimony. Some of this testimony looks as though it was made to fit a theory rather than facts which parties really know.

It is perfectly apparent that the journal entry which Judge Dellenbaugh took to the-clerk, bearing his O. Bh, could not have been in existence at the time he left the bench, November 2, 1895, and the same was not and could not have been O. E.’d by him before that time, and that his statement to the clerk was not true. By these false statements the clerk was deceived and the express orders of the judges, or at least one of them, were disregarded and evaded. Whatever the effect may be, these are facts so clearly established, there can be no reasonable doubt of their existence.

We, therefore, find the charges made against the respondent sustained by the facts specified and alleged in this third specification.

Similar charges are made against Burke, growing out of the joint action of the parties, and we deem it best to withhold the fixing of any penalty in this case until that case shall have been determined.


source: Caselaw Access Project

author: Caldwell, J.

license: Public Domain

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Hale, Caldwell.and Laubie, JJ.
    (Judge Laubie of the Seventh Circuit taking the place of Judge Marvin.)
    IN THE MATTER OF PROCEEDINGS IN DISBARMENT AGAINST VERNON H. BURKE.
   Caldwell, J.

In this matter two charges have been made against Vernon H. Burke. •

First, with having been guilty of misconduct in office as an attorney at law of the state of Ohio, and

Second, with having been guilty of unprofessional conduct involving moral turpitude.

Under these charges are three specifications.

The first is, that Vernon H. Burke and one Frank E. Dellenbaugh on the 1st day of January, 1895, and thence afterwards at all the dates and times mentioned, and thence continuously thereafter to the present time, were and still are, each of them, attorneys at law of the state of Ohio, licensed as such and practicing as such attorneys in the county of Cuyahoga and state aforesaid, and in this honorable court. That on or about the 30th day of January, 1895, said Frank E. Dellenbaugh as such attorney, was duly employed and retained in his capacity as such attorney in said county, by one Edith Manning of said county, then the wife of George A. Manning, to render to her his professional assistance and advice in relation to matters growing out of alleged illicit relations then and theretofore and thereafter existing between the said George A. Manning and one Jane Doe, of said county, and to obtain evidence of said relations, and to a devise in relation to legal proceedings to be taken upon obtaining said evidence, and to prosecute legal proceedings. That thereafter, about April 22, 1895, said Frank E. Dellenbaugh was appointed and qualified and assumed the office and duties of judge of the court of common pleas of the third subdivisions of the fourth judicial district of the state of Ohio, and thereafter and during all the time hereinafter mentioned, the said Frank B. Dellenbaugh continued to be and act as such attorney for said Edith Manning in said matters, under his said employment and retainer, but desiring to conceal the fact that he still was, and was still acting as such attorney at law in said matter for said Edith Manning, he did on or about the first day of July, 1895, solicit and procure said Vernon H. Burke as such attorney at law to become the ostensible attorney for said Edith Manning in said matter, and to render the professional assistance and advice to said Edith Manning in and about said matter.

The said Vernon H. Burke as such attorney, then well-knowing all and singular the premises aforesaid by the solicitation and procurement; and as the agent of said Frank E. Dellenbaugh as such attorney at law, did on or about the first day of July, 1895, accept such employment, retainer and agency, and thereupon as such attorney at law, and by the solicitation, procurement,and at the request and as the agent of said Frank E. Dellenbaugh, on or about the 6th day of July, 1895, in his professional capacity as attorney at law, did wrongfully, corruptly and unprofessionally threaten the said Jane Doe to publish and expose the said illicit relations between her and the said George A. Manning and thereby to bring scandal and disgrace upon her, the said Jane Doe, and did then and there agree with the said Jane Doe that in the event that she paid the sum of money then demanded of her, to-wit: ten thousand dollars, that she should be shielded and protected from exposure and disgrace,and her name suppressed and concealed,in case divorce proceedings were "thereafter commenced by said Edith Manning against her husband George A. Manning, and by means of said threats and said agreements the said Vernon H. Burke did then and there gain and receive from said Jane Doe, on or about the 8th day of July, 1895, the sum of five thousand dollars in cash and her promissory notes, one for the sum of two thousand dollars, payable in ten days after that date, and six promissory notes for the sum of five hundred dollars each, and payable respectively in three, six, nine, twelve, fifteen and eighteen months from said date, all of which notes were afterwards paid, and the said Vernon H. Burke did charge and receive as a professional fee for said acts the sum of $3,300 00, and on the 8th day of July, 1895, at said county, did pay $1,000.00 thereof and on the 18th day of July, $100.00 thereof, to the said Frank E. Dellenbaugh. He, the said Vernon H. Burke, then and there did all of said acts by him done as aforesaid, in the manner aforesaid, for the sake of gain and to conceal the fact that the said Frank E. Dellenbaugh was interested, retained, employed or concerned in said matter while being such judge, as aforesaid.

Now, considering the evidence under this specification given in the Dellenbaugh case, we said, that as to the time when Judge Dellenbaugh employed Burke in the case, there was some doubt; the preponderance of the evidence tending to show that Judge Dellenbaugh employed Vernon H. Burke to act as attorney in the case, on or about the 1st day of July, 1895. There was in that case some evidence introduced tending to show that Judge Dellenbaugh employed Vernon H. Burke in the case, as early as the latter part of April, 1895, and that he himself had nothing'to do with the procurement of the money as alleged in the specification after the time of the employment of Vernon H. Burke, and this evidence tended to show that after the employment of Burke in the latter part of April, Dellenbaugh took no^active part in the case, so far as obtaining this money is concerned, Upon this state of the evidence in that case, we held that the specification was not so clearly made out as against Judge Dellenbaugh that we could say that it was proven beyond a reasonable doubt, that it was clearly and satisfactorily proven, although we did determine in that case and so announced, that the weight of the evidence was,that Judge Dellenbaugh remained in the case until after the settlement was made and the money received, and until all the acts charged under specification one to have been done by Dellenbaugh and Burke were completed. We were satisfied in that case without any doubt that Judge Dellenbaugh did receive the $1,100.00 of the money received from the party named in the specification as alleged therein, as one-third of the fees received by him and Burke for the procurement of the money,

As the evidence now stands before us in this case, Judge Dellenbaugh is not on trial in this hearing, and the evi dence that raised the doubt in the minds of the court is not now before us, but as the matter now stands in this • hearing, the evidence shows that Judge Dellenbaugh and Vernon H. Burke acted jointly and together as attorneys for Mrs. Manning throughout, as charged in the first specification. I mention this matter here, because in treating the evidence now before the court, it must be treated as though Dellenbaugh and Burke acted together in all that is charged to have been done under specification one. And while thus treating the testimony, we would not have it inferred, that we mean to say by so treating, it that Judge Dellen-baugh, as a matter of fact, was fully and completely connected with all the acts charged in specification one, but only as bearing upon the character of the acts of Vernon H. Burke under said charge.

I will not undertake to rehearse here all the testimony nonneeting Vernon H. Burke with the acts and things named in the specification which I have recited, but only such testimony as is necessary to determine the nature and character of the act or acts which the testimony shows him to have done, and the part which he has shown by the evidence to have taken in the procuring of the money named in the specification.

The evidence shows in this case, that a party by the name of Hickox went to Judge Dellenbaugh sometime in the spring of 1895 and told Judge Dellenbaugh that Mrs. Manning desired to have him take for her a case for divorce against her husband, and it was there arranged between Judge Dellenbaugh and Mr. Hickox that Mrs. Manning should come in and see Judge Dellenbaugh. Mrs. Manning on the next day appeared in the office of Judge Dellenbaugh and Judge Dellenbaugh took her case. Judge Dellen-baugh set about procuring evidence of the relations between George A. Manning and the lady known as Jane Doe in this case, and proceeded for sometime without calling a detective; but sometime in April, 1895, he called to his aid the detective Mr. Christian. Mr. Christian put different persons who were in his employ, upon the case and certain evidence was obtained ap to the relations between these parties. In the first part of July, 1895, after Mr. Christian had obtained the evidence above referred to, Dellenbaugh, Christian and Burke had a meeting at the Kennard House in Cleveland, in which it is testied by Mr. Christian, Del-lenbaugh said that Christian had done a good thing, andl that the matter was now ripe and that something should now be done to bring the matter to a conclusion, and he said to Christian, that on account of his being on the bench, he could not write a letter to the lady in question, and asked Christian whether he, Christian, should write the 'letter, or whether Dellenbaugh should have Vernon write the letter. That same day or the day following Burke had a conversation with Dellenbaugh to this effect, as narrated by Mr. Burke:

. “He, Dellenbaugh, told me that it was a good matter, and he would arrange to turn it over to me; he didn’t know definitely whether he could turn it over to me or not, but he would see the parties; they would be down in a day or two, and then he would let me know. He didn’t tell me what the nature of it was at that time, at least he didn’t tell me the names of the parties nor the facts.”

On the 5th of July, 1895, Mr. Burke met Judge Dellen-baugh again in the court-room proper, the large room, and Mrs. Manning and Miss Kent were in the judge’s private room, Burke says that the judge related then to him the facts — ■

“And told me all about who Mrs. Manning was, who Mr. Manning was, and who the other party was. He told me that there was a good claim there, that we ought to get considerable money out of it. He said he had taken occasion to look the party up and she was worth any way twenty thousand dollars. After a little talk of that sort Judge Dellenbaugh took me into the private room in No. 7, the private room; he introduced me to Mrs. Manning and Miss Kent. We then had a conversation in reference to the facts, Judge Dellenbaugh doing practically all the talking. Judge Dellenbaugh reiterated what he had already said about Mr. and Mrs. Manning living happily together before this woman came between them, and he said that this woman had been watched and detectives had followed her to different places, told me various places that he had followed this woman with Mr. Manning; spoke about finding them out at a place by the name of Bussell Glen in Glenville; told me about Mrs. Manning and some other woman, I don’t know whether it was a Mrs. Robinson or who she was, going down from his office to the place where this woman was located, and finding Manning there, and also told me that Mrs. Manning had been ruined, and what a good woman she was. The judge said that this woman ought to pay twenty thousand dollars. Mrs. Manning insisted that she ought to pay twenty-five thousand dollars. The judge said that I should not neglect this, that I should take hold of it and rush it right through; that I had better go down and see if I could see her then. I left the judge and Mrs, Manning and Miss Kent in the private room off No. 7, and went directly down and saw this other party, I was gone probably half an hour. I came back, the judge was there, and I stated to them that I went down as the judge had told me, and talked with her about it; charged her with these different things some of which she admitted, and one of which she denied. The Russell Glen matter she said was not true. I said that she said she couldn’t raise twenty thousand dollars. In the first place, as I remember, I said that she wanted to settle; she told me that she wanted me to see Mrs. Manning and see if it could be settled, and wanted to know what it could be settled for. I told her that I didn’t think it could be settled for less than twenty thousand dollars, She said she couldn’t raise that, she didn’t have it; and she said if she had time she might get half of it, ten thousand dollars, but she couldn’t raise even five thousand dollars now without selling some stock and disposing of some of her jewels. When I told the judge that, he said it was not so, that she had twenty thous md dollars, he knew that. That I told him, no, I didn’t think so. ‘I am satisfied that this woman wants to settle this law suit; I don’t believe she has got it. She said she would have to sell some stock and her jewels in order to raise five thousand dollars.’ Mrs. Manning said that she understood she had twenty-five thousand dollars and she wanted all she had. I said I was satisfied that if she raised ten thousand dollars, that was all she could raise. I told them that she had agreed to be at my office in the morning and wanted to know whether Mrs. Manning would take the proposition of fen thousand dollars or not. Finally the judge said, to take it, and have her pay five thousand dollars down; that her notes were perfectly good; that if she paid five thousand dollars, she certainly would not let her notes go to protest. With that the judge and I walked out of the room. There the judge said to get this thing settled up, not to neglect it, but to get it settled up in the morning right away, and he said ‘whatever settlement you make, and you Gan get ten thousand dollars form her, you take one-third of it, and out of it I will take one-third, and you may have two-thirds;’ and I said ‘that is perfectly satisfactory to me.’ ”

Just prior to the publication of this matter in the World, Burke had a conversation with Judge Dissette in which he went over the facts quite extensively, connected with this specification, as well as some of the facts connected with the other specifications, and Judge Dissette’s testimony is to the effect that Burke went on and related to him his first connection with the case in the early days of July, 1895, and narrated the conversation held at the Kennard House, and went in detail over all the facts of the entire matter; and in that conversation Judge Dissette swears that Burke told him that Judge Dellenbaugh instructed him to go down and see the party and to strike her for twenty thousand dollars. That he had looked up her financial standing, that she was worth twenty thousand dollars, that he should strike her for that amount, Burke said:

“I went down from the court room to see the party and told her what my business was, told her something about what the detectives had said, and talked with her, and she collapsed, she was all broken up. She protested that it would ruin her; that if this thing got out it would be her ruin, and he said that after a while she said that she could not afford a scandal, said she hadn’t ]ieen at the house of assignation or prostitution where they had charged, that she hadn’t been there at all, but she could not have this scandal; she couldn’t have it get out. Burke said to her that he was not prepared to say whether Mrs, Manning would consider a proposition of settlement at all, but she immediately said, ‘how much do you think it would take to settle it’, and Burke said ‘I don’t know whether Mrs. Manning would consider a proposition of that kind, but I think about twenty thousand dollars,’ and the party said she couldn’t pay twenty thousand dollars, she couldn’t pay it; she couldn’t raise that much money, but if they would give her a little times he could raise ten thousand dollars just about half of it; and then went back to Judge Dellenbaugh with that proposition, and finally they concluded to take ten thousand dollars and they got ten thousand dollars.”

And Judge Dissette said to Burke:

‘‘Why, Vernon, that was a cold blooded piece of business.”

He said:

‘‘It was; it was the coldest blooded thing I ever was engaged in. I have been sorry for that little woman ever since, because she protested that she was innocent of that offense that was charged.”

And in that conversation as narrated by Judge Dissette, Burke told him of the final settlement of the matter, of the payments made, and of the division of 13,300.00 of $2,200.00 to Burke and $1,100.00 to Dellenbaugh, and narrated the whole matter.

Mr. Burke in his testimony in the Dellenbaugh case put somewhat of a different version upon the conversation he had with Jane Doe from what he did in his testimony before the trial committee or from what be did in his conversation with Judge Dissette. He seems to shade it a little in the direction of tending to show that he represented to Jane Dre on that occasion of his first visit to her, that she had robbed Mrs. Manning of a husband, had practically taken him away from her, and that Mrs. Manning was about to prosecute her for the alineation of the affections of her husband. In all these conversations narrated by Burke to Judge Dissette, narrated before the trial committee and as narrated by Burke on the Dellenbaugh trial, it appears that the main thing considered by these attorneys and their client at their conversation before going to see this woman and after Burke’s return from visiting her, was how much money has she got? How much can we get? Dellenbaugh said it was a good thing, ‘‘We ought to get considerable money out of it. ” He had looked the party up and she was worth anyway twenty thousand dollars; and as narrated by Burke to Judge Dissette, that he should strike her for twenty thousand dollars. In the first talk with Dellenbaugh and Mrs. Manning, Dellenbaugh said she should pay twenty thousand dollars, and Mrs. Manning said twenty-five thousand dollars. Dellenbaugh said Burke should rush it right through and go down and see her then and hurry the matter up when Burke returned from seeing the woman, he informed Dellenbaugh and Mrs. Manning that the woman hadn’t twenty thousand dollars; Dellenbaugh said he knew better; she had twenty thousand dollars. Dellenbaugh wanted to know if Burke had found out anything about her property affairs, and Burke said no, and Dellenbaugh said he knew she was worth twenty thousand dollars. Mrs. Manning then again said that she understood she was worth twenty-five thousand dollars and she wanted all she had. And after they had agreed to take the ten thousand dollars, Dellenbaugh said “Fix it up tomorrow, right away.’’

Now, down to this settlement there had been no petition framed for alineation of affections, nor does the evidence show that any consideration was had between the parties interested as to what the actual damage in the case was. The evidence shows that Jane Doe was horrified at the idea of a scandal coming out involving her, and the main thought in her mind was to keep the scandal suppressed, and when the next day the matter was settled up between her and Mr. Burke, she exacted from Burke at that time a promise that she should be protected and her name kept out of the paper, or, as testified to before the trial committee by Burke, “That she should be shielded.’’

The evidence does not show, nor is there any evidence tending to show, that the parties had up to that time ascertained the facts to be that Jane Doe had alineated the affections of Manning at all. From all that appears in this case there is nothing to show that she had enticed him away from his wife, or that anything had been dene by her to wrong Mrs. Manning of the affections of her husband.

Under this testimony it becomes the duty of the court in this caset to say whether the intent and purpose in getting the ten thousand dollars was to get a reasonable compensation for any injuries that Jane Doe may have done to Mrs. Manning, or whether that was entirely ignored, or was of such subordinate consideration that it played no part whatever or but little part in guiding the parties to the amount that should be demanded of Jane Doe, or the amount that was received from her.

It is clear in this case,that so far as Jane Doe is concerned, one of the principle considerations, if not the principle consideration for her paying the ten thousand dollars, was to shield herself from an open scandal, and this induced her to part with the money. The promise was made to her, that she should be protected and her name kept out of the papers; that her name should in no manner appear in any proceedings that were had for a divorce on the part of Mrs. Manning against her husband.

The question then is, under this testimony, was this demand made purely as a compensation and á reasonable compensation for an injury done to Mrs. Manning by Jane Doe, or was it the purpose and intent to extort from Jane Doe the largest amount of money possible without any regard to the amount of injury actually done ?

There is another matter that bears upon this question that goes a long way toward showing the intent of the attorneys who acted in the matter for Mrs. Manning. If they intended to exact only enough money to compensate for the actual injury done and that the ten thousand dollars as an exact equal of the amount that Mrs. Manning had suffered, then it seems very strange that they should take from that amount one-third or $3,300.00. It is hard to conceive, how attorneys could believe, that if they had obtained for their client only just dues, how it would be possible for them to charge her one-third of that amount for an amount of work and labor that would not call for fees to the extent of but a small fraction of the amount they received. If the intent was to charge Jane Doe $6,700.00 as an equivalent to the amount suffered by Mrs. Manning, and enough more to pay her attorneys a reasonable fee, then certainly demanding and receiving $3,800.00 for such services would be an extortion that could never be justified by any court.

The evidence under these specifications cannot fail to impress a court, that the line of action mapped out by the parties after getting their facts, was this: Dellenbaugh said:

“Now, Burke, you go over and strike her for twenty thousand dollars. This with the rehearsal of the accusa-lions, will paralyze her and before she can recover from the shock, rush her, before she has time to regain deliberation or get counsel, into a settlement for that amount.”

Burke went; he struck her for twenty thousand dollars; ■she collapsed; he tried to push her into the contemplated settlement, and the only reason why she escaped with only ten thousand dollars, was because of her inability to raise the twenty thousand dollars, and her plea for mercy touched a tender spot in Burke’s heart and he pitied that poor little woman. No attempt is made by Burke’s counsel to justify the part he took in this action. The only plea on his behalf is by way of an apology for his conduct, It is said that he was the dupe of another and much older lawyer and was made to believe the part he took was justifiable, and a powerful plea is made for mercy, because of his ignorance and the influence of his superior over him. This plea does very great injustice to the intelligence of Mr. Burke — It was not the intellect that was at fault.

Our conclusion in this matter is, that in demanding this money no regard whatever was had to the amount of any just claim that existed against the party from whom it was demanded, but the only object and purpose was, to demand and receive all that it was possible to get under an implied threat at least, that if the same was not paid, she would be exposed, and under the direct promise that if she paid the same, she would be protected and shielded and her name in connection with the affair kept from the public. This being true, the intent was an evil one, was a wrong one, and the act is one that cannot be justified, and the defendant Burke is guilty as charged in specification one,.

But it is urged on behalf of the defendant that this does not amount to blackmail, and that, if they believe the •charges against Jane Doe were true, that the defendant •cannot be found guilty in this action. This raises two questions of law, and before proceeding to consider these two ■questions, I will say that it is not necessary in an action of this character, to show that the defendant has committed a crime known as blackmail, but all that is necessary is to show that he has been guilty of unprofessional conduct in his office as an attorney, or of unprofessional conduct involving moral turpitude. And an act may amount to misconduct in the office of attorney without amounting to a crime. It is insisted on behalf of defendant that he made no threats to Jane Doe at the time that he first visited her nor at any other time, and that the specification is not true' that the money was obtained by threats, but, on the contrary, the language used is insisted, shows that he did nothing more than to state to her the facts, and that the proposition to settle the matter up came from Jane Doe, and the-proposition that she made was accepted, and that that is all that the defendant had done in this case, and that that does-not amount to threats or to extortion.

As we understand the law bearing upon this, no precise-words are needed to convey a threat. It may be done by inuendo or suggestion, and to ascertain whether language conveys a threat, it must be taken with the circumstances-under which it was spoken and the relations between the parties are to be considered, and then, if it can be found that the purport and natural effect of the language amounts-to a threat, then the mere form of words is ’ unimportant. Any language which conveys with sufficient clearness to be-understood, the proposition that a charge will be made is enough. The threat may be bluntly spoken or it may be-thinly veiled in suggestive terms. Now, if it is necessary to prove a threat couched in so many words, then perhaps-the language used by the defendant on this occasion might not amount to a threat. But if it is sufficient to show,that by any form of expression actually used, such a proposition-was intended to be conveyed and was so understood, then-the threat appears ample for the action. There are many cases bearing out this view of the law: Regina v. Mengge, 3 E. & F., 310; People v. Thompson, 97 N. Y., 313; Moore v. People, 69 Ill., App., 398; People v. Choynski, 95 Cal., 640; People v Toneille, 81 Cal., 275; People v. Gillian, 50 Hun., 35.

Under these authorities and under what I have said heretofore in regard to the facts under this specification, it most clearly appears that what was said on the occasion of this-interview taken in connection with the surrounding circumstances as well as what took place immediately thereafter this entire interview amounts to a threat, and that the object and purpose of the threat was to extort money.

The next proposition to be considered, is, whether, admitting that the parties believed that Jane Doe was guilty of the acts of which she was threatened to be exposed, does that belief exempt the defendant from the threat he made? This question has been considered by the supreme court of the state of Ohio, in a manner that bears more or less directly upon the facts in this case. I refer to the cases Elliott v. The State, 36 Ohio St., 318, and of Mann v. The State, 47 Ohio St., 556. In Commissioners v. Coolidge, 128 Mass., 35, the trial court was asked to charge these two propositions:

“First. That the jury must find that the defendant must have maliciously intended to obtain that which in justice and equity he knew he had no right to receive.
““Second. That if defendant believed that, Chapin actually owed him the sum of ten dollars when he wrote the letter, he is not guilty of the offense charged.”

The court m reviewing these letters, held:

“The trial judge properly refused these charges.” And held further that “the trial judge was right when he said: The law did not authorize the collection of just debts by maliciously threatening to accuse the debtor of a crime; that it is proper to say that a threat made by one who is accused, whose goods have been stolen, that he would prosecute the supposed thief for the offense if there were grounds to suspect him to be guilty, could not be considered as made maliciously and with intent to extort money, unless there were other proofs of malice and intended extortion.” Motsinger v. The State, 123 Ind., 498, is to the same effect. As I understand the cases above referred to in our own state as well as others, the rule laid down in this: That if a party demands from one who has his property or is indebted to him the amount that is due him or his property to be returned to him, and threatens,if it is not done he will commence proceedings against him either for the debt or for the wrongful taking of the property, that there is no intent in such communication to extort money, but simply to receive what is due. But, on the other hand, if the intent is to exort more than is due, or something that the party has no right to, or more than he has a right to have, for the •purpose of gain, or for the purpose of making the party from whom the payment is made to suffer, then whether or not the party believes the crime or act charged is true or not, is immaterial.

People v. Eichler, 75 Hun., 27; People v. Wightman, 43 Hun., 358.

We see in these propositions of law noobsticlein the way of holding in this case that the threat made and money demanded was an exortation without any reference to any just sum of money due, and was made for the purpose of gain, .and that therefore the law as well as the facts warrant us in holding as we do, that the defendant is guilty as charged in the first specification.

The substance of the second specification is, that said Vernon H. Burke and one Frank E, Dellenbaugh on the 1st day of January, 1895, and thence forward at all the dates and times hereinafter mentioned, and thence continually thereafter to the present time, were each attorneys, as alleged in the first specification. Then it narrates the facts as detailed and found in the first specification, and then proceeds in substance as follows: That said Frank E. Del-lenbaugh and|Vernon H. Burke, agreed and promised Jane Doe that they would shield and protect her from exposure in any divorce proceedings that might be begun by Edith Manning against her husband George A. Manning, and for the purpose of carrying out that promise, said Burke did wrongfully, corruptly and unprofessionally in conjunction with the said Frank E. Dellenbaugh as such attorney at law and for the accomplishment of the ends, objects and purposes as aforesaid, draft a petition for divorce in behalf of Edith Manning against her husband George A. Manning alleged herein in substance as ground for a divorce, only that the said George A. Manning had failed to furnish the necessaries of life for the year preceding to the said Edith-Manning, but not alleging that he was able to do so nor that he had been guilty of gross neglect of duty, and further alleging that the said George A. Manning had used .towards the said Edith Manning abusive and disrespectful language, but not alleging what the language was, nor that it was used in the presence of others, nor that it occasioned--her bodily ill, nor that it amounted to extreme cruelty, and further alleging that as the only other ground fora divorce,. that the said George A. Manning bad at divers times and places in the city of Cleveland to said Edith Manning unknown, committed adultery with divers persons to Edith Manning unknown, praying for a divorce and the restor-. ation of plaintiff’s maiden name, and in conjunction with the said Frank E. Dellenbaugh, for the further and more successful attainment of the purposes aforesaid, signed the name of another attorney at law, to-wit: George N. Webster, to said petition, and to the precipe thereon, although the said George N, Webster was not the attorney in said case and had nothing whatever to do therewith, and did thereafter, on the 25th day of July, 1895, file said petition and precipe with the clerk of the court of common pleas of Cuyahoga county, Ohio, and procured the issuing and service of the summons thereon with a certified copy of the petition therein upon the defendant therein, Gecrge A. Manning, and did in conjunction with said Frank E. Del-lenbaugh and in farther prosecution of the said purposes, and to prevent the publicity of said action, did prevent the making of any entries in said cause, excepting only the serial number thereof upon the appearance docket of said court, or upon any of the dockets or calendars of said court, and did procure the sheriff of said Cuyahoga county to make no entry of said suit or his doings therein upon the books kept in his office as by law he was required to do, and did further in conjunction with the said Frank E. Del-lenbaugh, make a secret agreement with the said George A. Manning as to the amount of alimony to be paid by him, and did thereafter in conjunction with the said Frank E. Dellenbaugh, procure said cause to be advanced for trial by the said Frank E. Dellenbaugh as such judge, in violation of law and the rules and practice of said court, without written motion, affidavit or notice, and without any good cause therefor, or for any cause other than the desire of the-said Vernon H. Burke and Frank E. Dellenbaugh to have said cause heard by said Frank E. Dellenbaugh pretending to act as such judge in said cause before hie term of office expired, and which term of office would and did expire on November 2nd, 1895, said case not being in order for trial in its order on the docket as required by law until long after that date, and he did further, in conjunction with th© said Frank E. Dellenbaugh, on the 28th day of October, 1895, at said county, procure said cause to be heard by the said Frank E. Dellenbaugh pretending to act as such judge therein, secretly, upon incompetent and insufficient evidence, and without any evidence of the adultery of the defendant George A. Manning, and in conjunction with said Frank E. Dellenbaugh, did in further pursuance of said purpose and design, cause and procure an entry to be made dated of said 28th day of October, 1895, by said Frank E. Dellenbaugh, who was then and there pretending to act as such judge therein, upon the file wrapper made to contain the papers on file in said cause in said court, with entry upon the said file wrapper and signed by said Frank E. Dellenbaugh, as such judge, and dated October 28th, 1895, and to the effect that said cause had been heard on said day by said Frank E, Dellenbaugh, as such judge, that the allegation of the petition had been found by the court to be true, and that the prayer of the petition had been granted' and plaintiff had been restored to her maiden name, all of which was done wrongfully, corruptly and unprofessionally by the said Vernon H. Burke, as such attorney at law, and for the purpose the better to assist the said Frank E. Del-lenbaugh to accomplish the purpose of his retainer and employment as attorney at law, for Edith Manning and to conceal the fact that the said Frank E. Dellenbaugh, while such judge, was the real attorney for Edith Manning in said matters.

The evidence under this specification shows that a short time before the 25th day of July, 1895, Judge Dellenbaugh said to Mr. Burke that Mrs. Manning desired to have a divorce, and that he should proceed at once to draw petition and that they talked over the nature and character of the petition, and the petition was drawn as set forth in the specification as there arranged between them. That they then talked over between themselves the importance of carrying out the arrangement with Jane Doe, that this entire matter should be kept private, and accordingly it was suggested by one or the other that some stranger should sign the petition, and accordingly the name of Webster was attached to the petition as attorney when it was drawn. The matter of keeping the petition and all reference to it on the books of the clerk of the court and of the sheriff in such a manner that nothing should appear thereon that wouldgive any one any clue to this action of divorce, was talked over between them and arranged that Burke should procure the case to be so entered in the books. The petition was filed; nothing appeared upon the books in either office to show that any such action was pending, and the books continued so until after the divorce was granted, and until the time when the decree appeared in the court to be entered. A short time before Judge Dellenbaugh was about to leave the bench, he notified Mr, Burke that if the case was to be heard before he left the bench and heard before him, that he must hurry up and hear it. A very short time after that, Mrs. Manning informed Burke that the case had been set down for hearing on the 28th day of October, 1895. The evidence in the case shows, that Burke at this time,did not know that the case had been set down for hearing, that he had filed no motion to have it advanced, he had taken no steps in the matter looking to a trial of the case before Judge Dellenbaugh left the bench. On the 28th day of October, the day the case was set for trial, late in the afternoon of that day, Mrs. Manning and Miss Kent appeared in the court-room but Burke was not there. Burke was notified at his office to come to the court-room at once. He went; when he arrived there, he found Judge Dellenbaugh, Mrs. Manning and Miss Kent in the room, Judge Dellenbaugh at once repaired to his private room and asked the three persons present to go in there with him. After entering the private room, he entered upon the hearing of the divorce case. No persons were present but the four, Judge Dellenbaugh, Vernon H. Burke, Mrs. Manning and Miss Kent. Miss Kent and Mrs. Manning were sworn and testified. What they testified to before the court does not appear. Mr, Burke seems to fail in memory as to what they said in their testimony on that occasion.

It is hard to conceive how either of them could have testified to the claim of adultery set up in the petition, as the entire evidence in this matter from first to last shows conclusively that neither Mrs. Manning nor Miss Kent knew personally of any offense under this charge in the petition that Mr. Manning had committed. It clearly appears that in that trial all that the court did, was without any sufficient petition, and without any evidence that would warrant the court in granting the divorce. It was not then claimed and it is not now claimed that there was any truth whatever in the first and second allegations in the petition as to the neglect of George A. Manning. When the court was through, all that he did was to make an entry on the file wrapper as set forth in the specification. No other entry was made by the court. The evidence tends to show that the beginning and hearing of this divorce case was for two purposes. First, to procure a divorce for Mrs. Manning, and second, to procure it without anything being known by any one and without leaving trace that any one could follow to determine the fact that such a case was pending or that such a case had been tried and heard and a divorce granted. There could have been no other object or purpose in this great amount of secrecy and private trial and hiding of everything from the records, except to carry out the agreement that had been made with Jane Doe that nothing should occur in that divorce case that would in any manner reveal her identity.

Intimately connected with this second specification, is the third specification, which relates to the manner in which the journal entry in this divorce case was gotten upon the court recoids. It alleges and the proof shows that sometime after Judge Dellenbaugh left the bench in 1895, sometime in 1896, it was ascertained by Judge Dellenbaugh and Mr. Burke that no journal entry was on in the Manning divorce case. Judge Dellenbaugh called Mr. Burke’s attention to this fact. Mr. Burke thereupon proceeded to draft a journal entry and took the same to the clerk of the court which was not O. K.'d by Judge Dellenbaugh, and asked the clerk to put it on record. The clerk told him he couldn’t do that because it wasn’t O. K.’d and sent him to Judge Logue to see what Judge Logue would do for him in the matter. Mr. Burke went to Judge Logue and Judge Logue told him that he didn’t hear the case and he would not 0. K. the journal entry. Thereupon Burke too^ the journal entry back to the clerk to do what he could to get the journal entry entered upon the journal of the court. The clerk took the journal entry- and with Mrs. Manning went to see Judge Logue in regard to the matter, but Judge Logue refused to act in the matter and referred him to Judge Ong. ’ Thereupon the clerk saw Judge Ong, ahd by this time it became rumored about,so that judges had some intimation that nothing appeared on the books of the court in any way that anyone had ever heard this divorce case, and it was known to the judges that there was nothing on the books in the clerk’s office to show that any such case was pending. And Judge Ong with this information, told the clerk not to enter the journal entry of record. The clerk soon thereafter returned the journal entry to Mr. Burke and said to him that the judges would not permit the journal entry to go on unless it was O. K.’d by Judge Del-lenbaugh before he left the bench.

Thereupon Mr. Burke notified Judge Dellenbaugh that he was unable to get the journal entry that he had, upon the journal, he had exhausted his resources, and although Mr. Burke can not remember all he said to Judge Dellen-baugh on that occasion, yet it does, appear that Mr. Burke thereupon drew a new journal entry like the one he had tried to get upon the record, except that the new one contained an order of the court that Mrs. Manning be restored to her maiden name. This journal entry,was handed by Mr. Burke toMudge Dellenbaugh. Soon after, this second draft of the journal entry was handed to Judge Dellenbaugh by Burke, Judge Dellenbaugh went to the clerk of the court and presented him a journal entry that corresponds in every word and particular and is a fac simile of the second journal entry that Mr. Burke drew as shown by the stenographer’s minutes to whom Mr. Burke dictated the journal entry, and the court does not hesitate to find in this case that that journal entry presented to the clerk by Judge Del-lenbaugh was the identical journal entry that Burke drew as the second entry, and the one that he drew after he failed to get his first draft on the records. When this journal entry was presented to the clerk by Judge Dellenbaugh, it had upon the face of it in red crayon “O. K. Dellenbaugh, Judge.” After the clerk looked at the entry and saw that it was thus O. K.’d he said to Judge Dellenbaugh, “When did you O. K. this journal entry?” Judge Dellenbaugh said it was the day or the day after be had heard the case' and before he left the bench. The clerk thereupon said: “Why, this obviates the entire objection that has been made to the journal entry going on in this case.” And thereupon the clerk put the journal entry upon the record.

It appears in evidence further, that sometime in the fall of 1896, Judge Dellenbaugh was a candidate for the bench again, and was running for that place, and there was some talk got out in regard to this journal entry and it was then talked over and agreed between Dellenbaugh and Burke that-if anything was said about the matter that they were to represent that the journal was done all right at the time of trial or very soon thereafter, and that Burke had sent the journal entry over to the clerk by a boy, who instead of leaving it with the entry clerk had left it with the file clerk and it had got in the files, and it had been thus mislaid.

■ It is now conceded that there were no facts to warrant the telling of any such story, but it is claimed by Judge Dissette that in the conversation he had with Burke just prior to the publication in the World in which Judge Dissette was asking him about this journal entry, and whether the Manning case had ever actually been tried or not, Mr. Burke then told Judge Dissette he had drawn the journal entry and sent it over by a boy and it had got into the files without being entered upon the records.

The effect of this testimony under the second and third specifications is this: that Mr. Burke knew that he had no petition in that case that would authorize any court to proceed to trial upon the same. He knew that he was proceeding before a court that had no authority whatever to try that case. He knew the court was prohibited by statute' and by all authority of law, from trying a case with which' he had so much to do before he went upon the bench. Burke knew — he must have known, that there was no evidence produced by any person present, that was competent to testify upon the matter of the adultery of George A. Manning. He knew when he got the journal entry or was* seeking to get the journal entry in the record of the case, that if the real facts of the way in which the case was commenced, after a consultation between himself and the judge who tried the case as to what should be in the petition, that •the petition should be so meager as to be entirely insufficient, and that the evidence was insufficient, that any judge, who became acquainted with these facts, and who then had •charge of the records of the court and control over them, would refuse to allow that journal entry to go upon the records. And this all-for the purpose and only conceivable purpose’or carrying out,the arrangement that he made with Jane Doe at the time that he obtained the ten thousand dollars from her. He knew, when he handed the second draft tojJudge Dellenbaugh, that it would be impossible to get that draft upon the record without its being made to appear to the clerk or the judges then upon the bench, that that journal entry was O. K. ’d by Dellenbaugh when he was upon’the bench. And this conspiracy between Judge Del-lenbaugh and Mr. Burke as to the commencing of this action, .as to the trying of it, and as to the getting the journal •entry on in such a way that nothing should be known in regard to Jane Doe in connection with the entire matter, is ■sufficient to warrant us in holding that all that Judge Del-lenbaugh did in 0. K.-ing that journal entry, long after he had left the bench, and all that he said and did to the clerk to get it on record, was well known to Mr. Burke. It is the act of one conspirator in direct line of the purposes and intentions of both conspirators, to accomplish an end, and we think,is sufficient to enable us to say, that Mr. Burke was equally responsible with Judge Dellenbaugh in getting the journal entry on by false representations made to the •clerk.

Had Mr. Burke bribed the judge to do for him all that ■Judge Dellenbaugh did in this divorce case to further his ends and purposes, no one would hesitate for a moment as to his guilt. Had he persuaded the judge by false representations or by untruthful statements to do what Judge Dellenbaugh did in that case, no one would doubt as to his .guilt. How much less is his guilt if he co-operates and connives with a judge who is on the bench in a scheme that is intended to further the objects and purposes of both of them if he commences an action, goes to trial upon it, and procures the entry of the journal entry, as was done in this •case V

We see no way under the evidence in this case,of looking upon this transaction, except as one intended and executed for the purposes of carrying out a private arrangement between the parties to the action and the party from whom they had obtained money. And in order to do this, they were willing to and did pervert, and use for this unlawful purpose the courts of the state of Ohio. To thus use the courts of the state, is certainly a wrong that should’not and cannot be overlooked.

John G. White, Alex. Hadden, A. T. Hills, Wm. B, Sanders, and IS. J. Blandin, for Prosecution.

M. A. Foran, and Mr. Bailey, for Defendant, Burke.

We find that Mr. Burke is guilty as set out in both charges of the complaint in this proceeding.


author: Laubie, J.

text:
    IN RE DELLENBAUGH.
   Laubie, J.

I had not thought that it would be necessary for me to-take any part in announcing our conclusions in these cases, but as my brother, Judge Caldwell, on account of his voice failing him somewhat, has just asked me to relieve him of the duty of disposing of the Dellenbaugh case, I have thought proper to do so.

The statute governing proceedings of this character, prescribes two punishments, either of which may be inflicted, where an attorney is found guilty of the charges preferred against him. One is disbarment-absolute, and the other is suspension for a given period. And, in determining, of course, which of these punishments should be inflicted upon án attorney, the gravity and extent of the dereliction upon his part must-be regarded. The court should take into account all matters in exoneration of the offense and of its gravity, on the one hand, and, on the other hand, should take into account all matters which form an aggravation as it were, of the-conduct.of the defendant; that is, those things which tend to show the gravity of the offense and the motive of the-party in the performance of the criminal or unlawful act.

To that end, in undertaking to determine the punishment to be inflicted upon Mr, Dellenbaugh, we have had regard-to all the circumstances of the case. We have been somewhat enlightened in this investigation through the trial of Mr. Burke, because the same matter precisely was involved in each trial. We have not been able to find anything in the circumstances of the case which,in any manner, tends to exonerate Mr. Dellenbugh of the gravity of the offense of which we have found him guilty — nothing that has been shown to ns, in the trial of either case, which in any manner exonerates him from the corrupt motive which is charged against him in the third specification of which he has been found guilty. On the other hand, many things have been developed by the testimony, which show conclusively to the court, the motive to have been deliberately corrupt, and therefore, to increase, as it were, the gravity of the offense of which he has been found guilty.

It may be remembered that my brother Hale, in delivering the opinion in this case, made the statement, that so far as the first charge against Judge Dellenbaugh was concerned, [which is the same as the first in the Burke case,) if the question could be determined upon the mere preponderance of the evidence, the court would undoubtedly have found him guilty.

We have many cases, where crime is directly charged against a defendant, not by criminal action, but by civil action by the party who claims to have been injured thereby, where a judgment awarding damages against defendant establishes the fact that he was guilty of a crime, and which would, therefore, have the tendency to disgrace him, and deprive him of his position in society almost as much as though he had been found guilty of the crime in a prosecution by the state, and yet in all these cases, almost universally, the issue is determined upon the preponderance of the evidence.

In this case, taking the gravity of it into consideration, and its other characteristics, we determined that it would be unjust to find Mr. Dellenbaugh guilty of the offense charged in the first specification, unless it were upon clear and convincing evidence — evidence that is so near to being beyond a reasonable doubt, that one can hardly distinguish between the two,

It was on one point in this first specification, and on one point only, that the court had this reasonable doubt, (and it gave the benefit of that doubt to Mr. Dellenbaugh), and that was whether or not he knowingly participated in the threats made to Jane Doe and in the promise to shield her from public disgrace, in order to obtain the ten thousand dollars. There was a conflict of evidence upon that proposition. To convict him of that, the case must have rested substantially upon the testimony alone of Mr. Burke. There was testimony which contradicted the statements of Mr. Burke, as to Dellenbaugh sending him to Jane Doe. Miss Kent, who Burke said was present when they were made, as well as Dellenbaugh, denied these statements. Christian, the detective, while his testimony tended to confirm them, told that he had made no reports whatever to Judge Dellenbaugh; that while he had been retained by him about the 22nd or 23rd of April, 1895, to investigate this matter, yet he had made no reports to Dellenbaugh, but that Burke had gotten the reports. And so it was that some doubt was thrown upon the proposition as to whether or not, Dellenbaugh had participated in that part of the transaction. But in determining the punishment to inflict upon Dellenbaugh, is he to be cleared entirely of the criminating circumstances shown in regard to that first specification? Clearly not. We could nit take Mr. Burke’s statements, especially against this contradictory evidence, and deduce therefrom that Dellenbaugh did participate in the unlawful method of obtaining this money. We could not use Burke’s testimony on that point against Dellenbaugh, although we felt that substantially it was true. As against Burke himself we could deduce from the circumstances he detailed, what he must have said to Jane Doe, although he denied it. While he undertook to exonerate himself, yet the facts he detailed indelibly impressed upon the act all the characteristics of blackmail; no other explanation could be given of such a transaction. It was improbable that a woman, young and unmarried, should be approached as she was, and within a few hours compelled to disgorge ten thousand dollars, unless threats bad been made against her to disgrace her; and subsequent transactions show, she would not have paid the money unless she had been guaranteed protection against exposure. While we could thus well find Burke guilty of this specification, notwithstanding his denial of the alleged "threats and promises, we were doubtful as to Dellenbaugh, under the circumstances; so we gave to Mr. Dellenbaugh the benefit of the doubt. But as I have already said, the incriminating circumstances shown by the evidence as to the first charge, may well be taken into consideration against him, when we undertake to fix the penalty.

As to the second charge in regard to the divorce, it was stated by my coadjutor, Judge Hale, that we could not regard that specification of the charge, because it' was substantially a charge against him of corrupt action as a judge.

While I have grave doubt as to the jurisdiction of the ■court to try Judge Dellenbaugh while he is upon the bench, yet we had nothing to do with that question in this trial, because it had already been determined by this court, on demurrer, that it did have jurisdiction; but we were unanimous in the opinion, that in regard to the second specification we had no jurisdiction; that whatever •offense had been committed in granting the divorce, had been committed in his character and capacity as a judge,and that it devolved upon some other tribunal, in some other proceéding to call him to account for that. But, again, as reflecting upon the specification of which we did find him guilty, in developing incriminating circumstances showing the motive with which he acted, we had a perfect right to and we did look to the facts and to the circumstances developed in regard to such charge, upon the trial.

We were of the opinion, that it was beyond question that in the beginning Mr, Dellenbaugh was retained, not to bring suit for alineation of the affections of the husband, but for a divorce. This lady, Mrs. Manning, had already left her husband; they had already separated; there was nothing staring her in the face but divorce; she was anxious for a divorce. The very fact that this decree had not been entered upon the record of the court, was developed through her anxiety to be re-married — this woman whose feelings had been so lacerated that they required twenty-five thous- and dollars to soothe them (that being the amount she insisted Jane Doe should pay), was already looking for a second husband, and soon took one, and the necessity arose to show that she had been legally divorced, and that developed ’the fact that the decree had not been entered of record. Every thing points to the fact that Mrs. Manning retained' Dellenbaugh only for the purpose of obtaining a divorce. Mr. Hickox, in whose family Mrs. Manning was then residing, testified that at her request be went and saw Mr. Del-lenbaugh and asked him if he would act as her attorney in obtaining a divorce, and that at Dellenbaugh’s request he’ brought her, and introduced her to Dellenbaugh, at the latter’s office. It appears that afterwards he proceeded a» her attorney in obtaining the evidence necessary to obtain a divorce for her on the sole ground upon which she declared she would accept it — the sole ground, because she was an Episcopalian — -which was that her husband bad committed adultery; and adultery with Jane Doe was to be the only ground for the divorce. So that, with that object in view, detectives were put upon the track of her husband and of this Jane Doe, that proof might be obtained of illicit intercourse between them; and it was found that he was with her night afternight until early morning hours, and in a house of prostitution, as assignation houses are.

Now, with that situation of affairs, Judge Dellen-baugh directs the character of the petition for divorce that is to be filed, alleging adultery without naming the corespondent, and is cognizant of all the secrecy that is thrown around it according to the agreement with Jane Doe, who had paid ten thousand dollars to be relieved of the publicity. With all these facts staring him in the face, and the name of the case not appearing anywhere upon the records of the court, in the private room adjoining the court-room in-which Judge Dellenbaugh was then holding court as a judge, he, who had been attorney for the purpose of obtaining the divorce, he, who had received eleven-hundred dollars growing out of the transaction as a fee, took cognizance of the case, and granted the divorce, as we must assume, upon the ground of adultery, when there was before him no person legally competent to tell of Manning’s conduct — illicit conduct with Jane Doe.

Now, while upon the bench, he had neither seen, approved of, nor signed any decree; but after he retired from the bench Mr, Dellenbaugh not only O, K.’d a decree, but falsely represented that he had 0. K.’d the decree while still a judge, and thus obtained what Burke was not able to do, a record cf a decree to Mrs. Manning of a divorce, upon the ground that I have stated.

It seems now, that these matters are so closely interwoven and connected, each fact following the other so closely,that it is impossible to separate them. They show the motive in the misrepresentation to the clerk of the court, to be carried to the judges then upon the bench, and who had control of the records, that he had not only heard the case and granted the decree, but that he had 0, K.’d the journal entry before he had left the bench. He had corruptly heard the divorce; he had corruptly granted it, if he granted it at all and I presume he did, and it follows as a necessary consequence that when he exerted himself as an attorney afterwards to get that decree entered of record, he was carrying out and giving force and effect to the corrupt motive that had animated him before.

These are the reasons why I have said that we know of no circumstance of exoneration in regard to the offense of which Mr. Dellenbaugh has been convicted; that all the circumstances are of a criminal nature and show conclusively the corrupt intent in all that he did; that this was unprofessional conduct, and could have proceeded only from a corrupt motive.

The result is: The judgment in the case against Dellen-baugh will be as in the Burke case, disbarment.

Judge Caldwell: The entry will be drawn in this case showing the motion filed for a new trial'on behalf of Burke.

Me. FoRAN. Exception; and I wish to be heard in that case.

Judge Caldwell: Yes,and do you want findings of fact?

Me. Foean: Yes.

Judge Caldwell: We will fix the compensation at $100.00 for each member of the committee in the case, and provide for the stenographer- — a large part of the work has been done by a stenographer — and I think the court will authorize her to be paid by the county.

The-costs in the Dellenbaugh case will be paid by Dellen-baugh.

The costs in the Burke case will be paid by Burke, aside from those I have mentioned.