Opinion
3 Div. 868.
January 16, 1945.
Appeal from Circuit Court, Montgomery County; Eugene W. Carter, Judge.
Arthur A. Madison was convicted of appearing as attorney for client without authority, and he appeals.
Affirmed.
The complaint filed by the Solicitor in the Circuit Court is as follows:
"The State of Alabama by its Solicitor, complains of Arthur A. Madison, that within twelve months before the commencement of this prosecution, he unlawfully and knowingly did appear as attorney for Mildred Hardy in the Circuit Court of Montgomery County, Alabama, and unlawfully and knowingly filed as attorney for said Mildred Hardy a petition in said Circuit Court to have determined the qualifications of said Mildred Hardy as an elector in and for Montgomery County, Alabama, all without authority from said Mildred Hardy and without being employed to do so by said Mildred Hardy against the peace and dignity of the State of Alabama."
Arthur D. Shores and Jane Cleo Marshall, both of Birmingham, for appellant.
Penal statutes must be strictly construed. Code 1940, Tit. 46, § 55; Dumas v. State, 17 Ala. App. 492, 86 So. 162. Words defined by law must be construed according to their legal meaning. Code, Tit. 15, § 233. The legal definition of "appearance" in Alabama is a submission to the jurisdiction of the court in obedience to, or in answer to process. 6 C.J.S., Appearances, § 1, p. 4. Grigg v. Gilmer, 54 Ala. 425. Courts cannot supply what may be a deficiency in a penal statute by construction. Grantland v. State, 8 Ala. App. 319, 62 So. 470. Every material allegation in a criminal case must be proved beyond a reasonable doubt. Jacobs v. State, 17 Ala. App. 396, 85 So. 837. That defendant unlawfully and knowingly represented the named person without authority is a material allegation. Smith v. State, 223 Ala. 11, 136 So. 265; State v. Southern Express Co., 200 Ala. 31, 75 So. 343. Custom and usage show that it is necessary for an attorney to have a guilty knowledge that he has no authority to represent the person he purports to represent. Blount v. Sixteenth St. Baptist Church, 206 Ala. 423, 90 So. 602.
Wm. N. McQueen, Acting Atty. Gen., John O. Harris, Asst. Atty. Gen., and Hill, Hill, Whiting Rives, of Montgomery, for the State.
One deliberately violating a positive law he is presumed to know cannot be excused on the ground that he intended no wrong. Smith v. State, 223 Ala. 346, 136 So. 270. The word "appearing" as used in section 55, Title 46, of the Code of 1940, includes appearing for any party, whether plaintiff or defendant. Code 1940, Tit. 46, §§ 55, 46, 47, 48; Title 13, § 198(1); Gen. Rules of Practice 1, 2, Code, Tit. 7, pp. 1001, 1002; 3 Words and Phrases, Perm. Ed., p. 728.
In the trial in the lower court by the judge without the aid of a jury, appellant was convicted of violating Sec. 55, Title 46, Code of 1940: "Any attorney appearing for a person without being employed must, oil conviction, be fined not less than five hundred dollars, and shall be incompetent to practice in any court of this state."
Insistence is made here that the word "appearing" in the section above is limited to representation of a defendant and does not include a plaintiff. We cannot accord to the section such narrow construction. To do so would clearly destroy the evident intent and purpose of the lawmakers. Obviously, the statute is directed against unauthorized representation of persons in the courts.
The matter of determining the course to pursue with reference to prospective litigation is more vital to a plaintiff than defendant. The latter is often required to come into court to protect his rights against the rules of procedure, while the former with few exceptions, comes into court of his own choice. Parties to lawsuits are often subjected to much inconvenience, financially and otherwise. Whatever may be the possible hazard or the anticipated gain, a person should have the privilege to select counsel of his own choosing.
To make the statute in question applicable to an "appearance" for the defendant and not the plaintiff would lead to a logical absurdity.
The words "appear" and "appearance" have an accepted meaning in relation to judicial procedure. They apply generally to "a coming into court by a party to a suit, whether plaintiff or defendant." Bouvier's Law Dictionary, Rawle's Third Revision; Black's Law Dictionary, 3rd Ed., p. 123; Stephens v. Ringling, 102 S.C. 333, 86 S.E. 683; In re Ford's Estate, 98 Misc. 100, 163 N.Y.S. 960; Doe ex dem. Chamberlain, Miller Co. v. Abbott et al., 152 Ala. 243, 44 So. 637, 126 Am.St. Rep. 30; Title 46, Secs. 46 and 48, Code 1940; Title 7, pages 1001 and 1002, Code 1940 Rules of Practice, rule 1; Title 13, Sec. 198, Subd. (2), Code 1940.
The evidence in the instant case in all material aspects is without conflict or controversy. There is clearly presented a question for the determination of the trial court on the familiar issues. In obedience to the familiar rule in such cases, we will not disturb his judgment. McGeever v. S.H. Harris Sons, 148 Ala. 503, 41 So. 930. See also, Smith v. State, 223 Ala. 346, 136 So. 270.
The judgment of the lower court is affirmed.
Affirmed.