
    The State ex rel. Walker, Attorney General, v. Harber et al.
    
    In Banc,
    July 2, 1895.
    1. Attorneys: disbarment: power of court. All courts having power to admit attorneys to the bar possess, as a necessary and inherent incident of such power, the right to disbar them for unworthy behavior, independent of any authority conferred by statute.
    2. -: -: -. The attorney general may institute disbarment proceedings, and any member of the bar may put in motion such a proceeding; and the court, in the exercise of its inherent power, may require any member-of the bar, as a duty, to institute proceedings to disbar another member of the same bar.
    3. -: -: -. An attorney who is guilty of unprofessional conduct, in so conducting himself as to be unworthy of the trust and confidence involved in his official oath, and which the court has a / right to repose in him as an officer of the court, and whose honesty and integrity are not such as should characterize him in the performance of his professional duties, may be removed by the court from his official position.
    4. -: -: relations of attorney to court. The views expressed in the dissenting opinion in State ex rel. v. Mullins, cmte, p. 241, as to the relations of attorneys to the court, and their duties and obligations in their professional capacity, approved and adopted.
    5. -: -: falsification of record: practice of deception upon court. Where one of two attorneys who tried a cause falsified the transcript of the evidence furnished by the official stenographer, by removing from it the correct testimony of material witnesses and substituting false testimony, and delivered the transcript, thus changed and mutilated, to the trial court as correct, and induced him to sign and approve it; and the other, knowing such transcript to be false, prepared from it an abstract, brief and printed argument, with intent to deceive the appellate court and procure a reversal of the judgment against his client, both such attorneys should be disbarred.
    
      
      Proceeding to Disbar.
    
    Sustained.
    The trial of Joseph Howell, indicted for murdering Nettie Hall, in Linn county, Missouri, on the nineteenth of January, 1889, and matters incident thereto, have given origin to the present proceedings to disbar the respondents from practicing at the bar of this court. Howell was ultimately convicted of the crime with which he was charged, and suffered the extreme penalty which the law denounces against offenders of that class, but before this result was reached 'there were trials a.nd mistrials, with the final result announced in State v. Sowell, 117 Mo. 307.
    At the April term, 1890, the supreme court reversed the judgment of the Linn circuit court, and remanded the cause for new trial. Upon the case being redocketed Howell was granted a change of venue to the Grundy circuit court. Up to this time Howell was represented by A. W. Mullins as attorney, but, upon the cause being docketed in the Grundy circuit court, Messrs. Harber & Knight, a firm of attorneys living at Trenton, were employed in the defense of Howell. The cause was then tried, but the jury failed to agree; the case was continued, and affidavits against Judge Burgess alleging prejudice were filed, and Judge C. H. S. Goodman, the circuit judge of the adjoining circuit, was called in to try the cause. The defendant was again tried at the August adjourned term, 1891, convicted of the murder of Nettie Hall and sentenced to be hanged. Upon the trial Mrs. Josephine H. Yandivert was appointed official stenographer. James Hall, R. N. Yorce and D. C. Orr were sworn and testified upon the part of the state. Joseph A. Howell, the defendant, was sworn and testified in his own behalf. He filed a motion for new trial, which was argued orally and overruled; applied for and was granted an appeal to this court, and an order made allowing defendant time in which to file his bill of exceptions.
    Not until January 23, 1893, however, was the transcript of the bill of exceptions filed in the office of the clerk of the supreme court. Hpon the filing of the transcript the cause was set for hearing at the April term, 1893, of division number 2 of this court. On April 11 the cause was argued orally by E. M. Harber and A. W. Mullins (A. Gr. Knight being present, but not participating in the oral argument), and submitted, with printed abstract of the evidence, statement, brief and argument; the printed abstract, statement, brief and argument was signed by respondents Harber & Knight and A. W. Mullins. Both in the oral argument and in the printed brief and argument two points were urged for reversal more prominently than any others: First, that the evidence upon the trial did not establish the alleged homicide, the death or identification of Nettie Hall, the person charged in the indictment to have been killed by the defendant; second, that the cross-examination of the defendant was unwarranted by the law or the facts, in this: that upon the trial the court permitted the state to cross-examine the defendant about matters not testified to by him in chief.' In the printed statement and abstract prepared by the respondents, and from which respondent Harber and Major Mullins argued the case, it was represented and made to appear that there was absolutely no testimony upon the trial to identify the dead body of Nettie Rail, or to establish the fact that she was dead; and there is also a cross-examination of the defendant upon said trial, which, if it had occurred, was wholly unwarranted, either in law or in fact, and of itself sufficient to reverse the cause.
    
    
      After the case was argued and submitted in division number 2, it was discovered by the attorney general that the bill of exceptions' on file in the office of the clerk of the Grtindy circuit court, and the transcript thereof of record in this court was false in two particulars, viz., that the testimony failed to show any proof whatever of the corpus delicti, the death or identification of Nettie Hall, and that the. cross-examination of the defendant, as it appeared in the bill of exceptions and transcript, did not occur upon the trial; that the first had been omitted, extracted and removed from the official stenographic copy, and the latter manufactured, inserted and interpolated, for the express purpose and with the intent of misleading and deceiving this court, and thereby securing a reversal of this cause. These facts were, on motion of the attorney general, called to the attention of division number two of this court. The order of submission, previously entered, was set aside, and a rule made upon Judge Goodman, who had tried the cause, to proceed to Trenton and correct and restore the bill of exceptions and transcript thereof, so that it should contain and report the true testimony actually given upon the trial. In obedience to this rule, Judge G-oodman proceeded to and didhorrect the bill of exceptions and transcript thereof, and under his hand and seal certified to this court the correct transcript. Judge G-oodman also certified to this court, in obedience to said rule, that he had investigated the changing, altering, mutilating, interpolating and forging of the bill of exceptions and transcript, and found that the same had been changed, altered and forged both beforti and after it was signed by him and filed with the cleric of the Grundy circuit court. After an examination of the proceedings, before Judge G-oodman and his report to division number two, this division of the court entered an order of record approving in all things the action of Judge Uoodman, together with the report made by him; the ■cause was then set down anew for brief and argument, and an additional brief filed upon the part of the state, but none upon the part of the appellant; and during May, 1893, the cause was submitted without oral argument, the judgment affirmed and the defendant hanged.
    The testimony in this proceeding discloses the fact that after Howell’s motion for new trial had been overruled, Messrs. Harber and Knight, the respondents, applied to Mrs. Josephine H. Yandivert, the official •stenographer, for a transcript of the evidence and proceedings; that Mrs. Yandivert forwarded two copies of the testimony by express to them at Trenton, Missouri, ■one for them, and the other for the circuit clerk, with instructions, as Mrs. Vandivert testifies, to deliver the duplicate copy to the cleric; that upon the-receipt of the duplicate transcripts, Messrs. Harber and Knight, instead of delivering the duplicate copy to the clerk, isent it by express to A. W. Mullins, at Linneus, and retained the other themselves; that Mr. Harber proceeded to, and did, make an examination of the transcript retained by them, and made by Mrs. Yandivert, making alterations and suggestions and removing and changing the first page; that Mr. Knight then took the matter in charge and proceeded to prepare a bill of exceptions.
    It is shown that these transcripts of the testimony, made by Mrs. Yandivert, contained the true testimony of the witnesses as given upon the trial, and in them appears the positive testimony of Hall, Yorce and other witnesses, identifying the dead body of Nettie Hall on the night of the homicide at the burning building; that these transcripts contained the correct cross-examination of the defendant as it occurred upon the trial. These facts are admitted in the depositions of both of respondents Harber and Knight, and, although they say in their separate answers that the changes made by them were necessary to correct and perfect the bill of exceptions, yet in their sworn testimony they admit that such changes were not necessary to the correction of the bill of exceptions, but that, so far as these particular facts .are concerned, the transcripts fimiished by the official stenographer were absolutely correct. It is admitted by •respondent Knight, in his deposition, that the changes made by him loerefor the purpose, not of making a true bill of exceptions, but for the purpose -of making one that was false, and with the intention of misleading and deceiving the supreme court, in order to secure a reversal of this cause.
    
    In the preparation of the bill of exceptions, according to the testimony of respondents, Knight proceeded to, and did, extract every particle of testimony, as shown by the correct and by the mutilated pages printed in full in the abstract of the evidence before us, tending either directly, or indirectly, to' establish the corpus delicti, from the transcripts furnished by -the official •stenographer, and in order that the same number of pages might be preserved in the transcript, other, matters not testified to by any witness upon the trial were inserted. .In addition to this, in the cross-examination of the (defendant, pages of questions and answers had been extracted, and false and manufactured matter, questions and answers that had not been asked or given upon the trial, had been inserted and when asked.the.object and intent with which these changes were made, Mr. Knight •states in ■.his testimony that it was for the purpose of securing a reversal of that case.
    
    It also appears from respondents’ testimony that •this false, and fraudulent bill of exceptions was presented to counsel representing the state by Mr. Harber, with the assurance by him (Harber), as testified to by Mr., BiggeiUthat .the same was just as.prepared-by the official stenographer; that the attention of the attorneys upon the other side was not called to the fact that these changes had been made; that upon reaching an agreement, except as to three matters foreign to the issues involved in this proceeding, Mr. Knight proceeded to Maysville and presented to Judge Goodman, who had tried the case, the bill of exceptions which he knew at the time had been falsified and changed, and at the same time assured Judge Goodman that the same was' correct; that upon the assurance of Mr. Knight, without further examination of the bill of exceptions, Judge Goodman signed it; that upon his return to Trenton on the same day he notified Mr. Harber that the bill of exceptions signed by Judge Goodman contained no proof of the corpus delicti, and that it did contain a cross-examination of the defendant sufficient to reverse the cause; that a day or two thereafter, Mr. Harter, as - he testifies, found the sheets so extracted ty Knight, showing exactly what changes had teen made, %ohat portions of the testimony had teen extracted and where and what'false matter had teen inserted, toth in the testimony of Hall and Yorce, and the defendant Howell, and other witnesses; that he (Harber) took the sheets so found by him with the interlineations in pencil in Mr. Knight’s handwriting, which showed exactly the changes which had been made, removed them from the' pigeon-hole and put them in his (Harber’s) safe, where 'he (Harber) kept them until the hearing before Judge Goodman, in May, 1893; that during the preceding March he (Harber) proceeded to, and did, prepare an abstract of the record, brief, and argument, which was printed and filed in the supreme court, when- he knew that the bill of exceptions on file'in the clerk’s office and the transcript thereof on file in this court were false and untrue and had been made so by a member of his firm in the manner before stated; that- he inserted in. the extracts of the evidence contained in said printed brief, statements of the testimony of Hall, Vorce and other witnesses what he knew was untrue; that he inserted in said extracts of the evidence an alleged cross-examination of the defendant, Howell, that he knew did not occur upon the trial, but was as shown by a bill of exceptions which he knew was false and untrue and had been made so by a member of his firm; that under the head of points and authorities in said printed brief, statements were made of the failure of the proof of the corpus delicti and the cross-examination of the defend-' ant that were false and untrue; the same is also true of the printed argument to which is signed the names-of Harber and Knight and Mullins; and from which Messrs. Mullins and Harber made their oral arguments; that, he, Harber, knew that the bill of exceptions had been falsified in the manner before stated prior to the making of the transcript thereof by the clerk which was-afterward forwarded to the clerk of the supreme court; that he, Harber, knew when he made the oral argument in the supreme court in April, 1893, that the bill of exceptions had been falsified in the manner before stated, and that the statements contained in the printed abstract, brief and argument were false and untrue (having reference to the testimony of the witnesses upon the trial); that he knew when these statements were made in reference to the corpus delicti in his printed abstract and brief, that the witnesses Hall and Yorcc had testified identifying the dead body of Nettie Hall, and that the statement contained in their printed abstract of the evidence so far as it referred to the testimony upon the trial, was false; that in his argument in the supreme court he and Major Mullins complained of the cross-examination of the defendant Howell, upon the theory that it had been correctly represented and contained in the bill of exceptions and transcript; that he knew when he made the oral argument in the supreme court that these changes had been made in the testimony of the witnesses and that the bill of exceptions as of record at the time of the argument ivas false in these particulars.
    
    Upon the part of relator, the evidence tends to prove that the changes made in the bill of exceptions were made after the same had been signed by Judge Goodman, and filed with the clerk of the circuit court of Grundy county; that during April, 1892, Bresnehen, Bigger and James Hall examined the proposed bill of exceptions submitted to them by E. M. Harber; that at that time it contained the true testimony of the witnesses in which they identified the dead body of Nettie Hall, and testified to the fact that she was dead; that at the time Judge Goodman signed the bill, it contained the true and correct testimony of the witnesses as above stated.
    It is also shown by the testimony that in the latter part of August or the first of September, 1892, C. C. Bigger and James Hall examined the bill of exceptions of record in the circuit clerk’s office that had been signed by Judge Goodman, and they testify that at the time of that examination, the bill of exceptions contained the true testimony of the witnesses in which they identified the dead body of Nettie Hall, and testified that she was dead.
    It is contended by respondents that no changes were made in the bill of exceptions after it was signed by Judge Goodman. This fact they ■ both, testify to, and the testimony introduced by them tends to substantiate this contention.
    Respondent Knight on cross-examination was asked the following question, and gave the following answer:
    
      
      “Q. At the time the proposed hill of exceptions was delivered to opposing counsel and presented to Judge Goodman for signature and filed with the clerk of the circuit court of Grundy county, Missouri, and at the time you assisted the clerk in making the transcript, as stated by you, and when the transcript was filed in the supreme court, and when your brief was prepared and filed in this case, you knew that sheets containing the true testimony of witnesses had been extracted therefrom by you, or under your direction, and other sheets containing matter not testified to upon the trial had been inserted in lieu thereof, either by you or under your direction, did you not*? A. I did; and in saying this I say it all.”
    
    While it is denied by Mr. Harber that he had information as to the preparation of the bill of exceptions by Mr. Knight, it is shown by his newspaper interview, authorized and dictated immediately after the filing in the supreme court of the motion to set aside the submission by the attorney general, that he and Knight together prepared a bill of exceptions, and made such use of the transcript furnished by Mrs. Vandivert as they desired. It is also ..shown by his affidavit, filed in the supreme court on May 16, 1893, that he had made a careful examination of the proposed bill of exceptions on the night prior to its presentation to Judge Goodman, and that he again examined the same at the time of making his affidavit (May 12,1893), and. that the evidence of Hall, Yorce and Orr, then contained in the bill of exceptions, was then exactly word for word as contained in the bill of exceptions immediately prior to its being presented to Judge Goodman on the night of April 19, 1892; which shows conclusively that Mr. Harber knew, from his examination on April 19, 1892, prior to the bill of exceptions being signed by Judge Goodman, that it contained false and mutilated 
      
      testimony of Kail, Vorce and Orr, for it is conceded that the bill of exceptions on May 12, 1893, contained the false and fraudulent testimony of these witnesses. Both respondents showed previous good character, both as citizens and members of the bar.
    Pages of the testimony as reported by the stenographer and admitted to be correct, were extracted from her copy of the evidence, and false evidence inserted in lieu thereof, as follows:
    Page 9, James Hall’s testimony; pages 61, 65, 67, 76, 77 and 81, R. N. Yorce’s testimony; pages 89 and 90, C. S. Ranahan’s testimony; pages 123,124 and 125, J. A. Pratt’s testimony; page 174, Sheriff Critchfield’s testimony; pages 222, 223, 226 and 241, Henry Smith’s testimony; pages 372, 374, D. C. Orr’s testimony; pages 387, 388, 389, 390, J. C. Moore’s testimony; pages 434, 461, 473, 479, 495, defendant Howell’s testimony; pages 562, 563, Greo. Anderson’s testimony; pages 570, 575, O. F. Liffey’s testimony; page 626, tender of certain witnesses; page 626, Sheriff Winter’s testimony.
    These were the thirty-five pages of typewritten matter which Knight had extracted from what should have formed the bill of exceptions, and had substituted an equal number of other typewritten pages in their places. These pages were found by Harber, as he testified, in a pigeon hole in a case in Knight’s room, which adjoined his own, a few days after Knight, on returning from Maysville, had informed him that there was no proof of the corpus delicti in the bill of exceptions as signed by Judge Groodman. These pages, as already stated, were carefully put away and preserved by Harber in his safe.
    Hpon this state of facts, the attorney general, on the twenty-fifth day of June, 1894, filed his information in this court looking to the disbarment of said respondents, which, charges are set forth in substance in the opinion of the court, and other facts therein also, as may be found necessary.
    
      B. F. Walker, Attorney General, and Morton Jourdan, Assistant Attorney General, for relator.
    (1) The summary jurisdiction of courts over attorneys exists by reason of the necessary and inherent power vested in them to control the conduct of their own officers, and to maintain their own dignity and respectability. All courts having power to admit attorneys are authorized, in cases where they are guilty of fraud, dishonest or unprofessional conduct, to strike them from the rolls. Floyd v. Nangle, 3 Atk. 568; Archbold’s Q. B. Practice [Chitty’s Ed. 1866], p. 147; Strout v. Proctor, 71 Me. 288; Weeks on Attorneys, sec. 80; Fx parte Brounsall, 2 Cowper, 445; lAm. and Eng. Encyclopedia of Law, p. 944; Ex parte Wall, 107 U. S. 265 [Law Ed., book 27, p. 552] ; State v. Kirke, 12 Fla. 278, s. o. 95 Am. Dec. 314, and notes; Smith v. Tenn., 1 Terg. 228; Ex parte Burr, 2 Cranch C. O. 379; Baker v. Comm., 10 Bush (Ky.), 582; Anderson v. Dunn, 6 Wheat. 204; State ex rel. v. Winton, 5 Pac.Rep. (Ore.) 337; In re Henderson, 88 Tenn. 531; Peoplev. Goodrich, 79 111. 148; Scott v. State, 86 Tex. 321; Davis v. State, 92 Tenn. 634; Anderson v. Bosworth, 15 R. I. 443; s. a., 2 Am. St. Rep. 910; State ex rel. v. Laughlin, 73 Mo. 443. (2) Although we have a statute on the subject of the disbarment of attorneys (chap. 11, R. S. 1889), it serves simply as a guide to such proceedings, but does not limit the power of the court. The causes alleged for disbarment are,‘however, within the provisions of the statute; if they were not, the statute would extend no further than to direct the manner of procedure, but not to restrict the inherent power of the court. The supreme court, having power by express statute to grant licenses to practice law, has the right to see that such licenses are not abused, and that those who receive them do not demean themselves in such a way as to bring discredit on themselves and the courts. People ex rel. v. Goodrich, 79 111. 148; Penobscot Bar v. Kimball, 64 Me. 140; Ex parte Secombe, 19 How. TJ. S. 13. The statute is not to be construed as restrictive of the general powers of the court. In re Mills, 1 Mich. 392, in which find numerous cases discussed. State ex rel. v. Chapman, 11 Ohio, 430; Cohen v. Wright, 22 Oal. 293. The decisions of the English courts are to like effect. In re Martin, 6 Beav. 337. The jurisdiction of the English court of exchequer to enter of record and enforce orders in regard to solicitors is independent of statute, and is founded on the necessary and inherent control of the court over the conduct of its officer. King v. Bach, Price’s Rep. 124. Attorneys were frequently stricken from the roll, says Lord Coke, for forging writs and altering rolls. 4 Inst. 101. (3) A proceeding to disbar an attorney may be commenced by members of the bar on their own motion. Fairchild Go. Bar ex rel. v. Taylor, 13 L. R. A. 767, and notes (Conn, case), or by an officer of the court, as an attorney general, a prosecuting attorney or an enrolled attorney, in the name of the people, the state or the commonwealth. People v. Turner, 1 Cal. 143; Balter v. Comm., 10 Bush. 592; Turner v. Comm., 2 Mete. 619; Peyton’s Appeal, 12 Kan. 398; People v. McCabe, 19 L. R. A. 231; Davis v. State, 92 Tenn. 634. These last two cases were brought by the attorney general, and in the case of People ex rel. v. Beattie (137 111. 553) the proceeding was instituted by the attorney general at the relation of certain members of the bar. It is held by the supreme court of Iowa, in the absence of any express statutory authority, that the district court, in the exercise of its inherent power, may require a member of the bar to prosecute charges against a practicing attorney looking to his disbarment. Byington v. Moore, 70 Iowa, 206. “The statute (see sec. 611, 612, R. S. 1889) which provides for the exhibition of charges against an attorney for improper conduct does not indicate in what name or by whom they shall be prosecuted, and the manner of the institution of the proceedings is left to the discretion of the court. Independent of any statute, a court having power to admit attorneys has the power to disbar them. While it is not necessary that charges should be prosecuted in the name of the state, we will not pretend to say that they may not be so exhibited and prosecuted.” State ex rel. v. Kemp, 82 Mo. 213. (4) An attorney may be disbarred for any matter or thing, whether sufficient to constitute a criminal offense or create a civil liability or not, if it is shown that he is unfit to be permitted to practice in the courts. Ex parte Cole, 1 McCrary, 405. It is expressly provided by section 611, Revised Statutes 1889, among other things, that if any attorney be guilty of any deceit in his professional capacity, he may be removed or suspended from practice upon charges being exhibited and proceedings had thereon. • While an attorney owes his client the duty of fidelity, he also owes the duty of good faith and honorable dealing to the court before whom he practices. He is an officer of the court, and his high vocation is to correctly inform the court upon the law and facts in the case and to aid it in doing justice. He violates his oath of office when he resorts to deception or permits his client to do so. He is under no' obligation to seek to obtain for his client that which is forbidden by the law. People ex rel. v. Beattie, 137 111. 553. A lawyer who suffers false testimony to be presented to a court with the possible result of inducing the latter to enter a judgment it would not enter if the real testimony were known, can not shield himself behind any supposed obligation to his client. State ex rel. v. Beattie, supra. An attempt by an attorney to impose upon and deceive a court by the introduction in evidence of testimony known by him to be false, is such professional misconduct as to justify the court in revoking his license. State ex rel. v. Beattie, supra. It is good cause for disbarring an attorney that' he made a false showing to obtain a continuance, and did obtain it by deceiving and misleading the court. Baker v. State ex rel. Johnson, 15 S. E. Rep. 788. An attorney .will be disbarred for detaching a receipt from an execution, .and for imposing on the court a false replevin bond. Me Serfass, 8 Cent. Rep. 850; Be Blank, 1 Cent. Rep. (Pa.) 910. An attorney who presents a mutilated copy of papers to a court for the purpose of misleading it and obtaining a decree, will be disbarred. Re Eendersdn, 88 Tenn. 531, s. c., 13 S. W. Rep. 413. If deceit is practiced by an attorney or a solicitor in their offices as such, they may be disbarred from further practice. State v. Burr, 19 Neb. 594; Be Peterson, 3 Paige, Chan. Rep. 510. An attorney was disbarred from practice by the high court of errors and appeals of Mississippi for obliterating a record and antedating a writ to avoid the statute of limitations. JEx parte Broivn, How. (Miss.) 303. An attorney altered the copy of a letter which was used as evidence on the trial of a suit, by adding the word “Pres’t” to the name signed to the letter, so as to make it appear that the writer acted, when he wrote the letter, as the president of the bank, when in fact he did not so write. Held, that this was a sufficient fraud or deceit to authorize the attorney’s disbarment. Bice v. Comm., 18' B. Mon. 472. An attorney who deceives the court by bringing a collusive suit on a fictitious note to enable a creditor to escape bankruptcy, is subject to disbarment. In re Nathby, 
      14 Cent. L. J. (Cal.) 90. It has been held a sufficient ground for disbarment for an attorney to alter a letter written by a judge to the clerk of the court. Baker v. Comm., 10 Bush (Ky.), 592. Where an affidavit containing false statements is subscribed to by an attorney in a matter* of pre-emption, filed in a land office, on which affidavit, however, in formal oath is administered, but which statements are known by such attorney to be false, such attorney, while not chargeable with a crime, is guilty of such unprofessional conduct that his name will be stricken from the roll of the court. In re Keegan, 31 Eed. Rep. 129. An attorney who prepares answers for witnesses in testimony to be given before a probate court, reads a part of same to such witnesses to induce them to subscribe to same, but does not disclose the others to them, may, upon a showing of 'this fraudulent conduct, be disbarred. In re JEldriclge, 37 Am. Rep. (N. Y.) 558. An attorney will be disbar/ed for breach of fidelity to the court. Nor will his youth excuse him. Inre Deringer, 4W. N. C. 20(b An attorney will be disbarred for abstracting records of the court. In re Gates, 17 W. N. C. 142. If it comes to the knowledge of the court that an attorney is unworthy, it is the duty of the court to withdraw its indorsement. Berfass case, 116 Pa. St. 455. An attempt to get opposing' attorney drunk is sufficient cause for disbarment. Dickens case, 68 Pa. 169.
    Eor an elaborate discussion of the question of the disbarment of attorneys, the grounds therefor, proceedings, etc., see In re Wall, 13 Eed. Rep. 814, and note 820-823.
    
      John P. Butler for respondents.
    (1) Inherent power lodged elsewhere than in the people, is the instrument by which liberty is denied, and self government destroyed. To the doctrine of inherent power and of summary jurisdiction, advanced in the first proposition of relator’s brief, we can not therefore subscribe. Inherent power is one of the attributes of the sovereign people of this state and rests in them alone. Secs. 1, 2, art. 11, Const. 1875. The power and jurisdiction of the supreme court is limited by the constitution,' which provides that it shall have appellate jurisdiction only, except in cases otherwise provided therein. The cases otherwise provided for, are designated to be, the power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and “other original remedial writs” and to hear and determine the same. Secs. 2 and 3, art. 6, Const., su,pra; Foster v. State, 41 Mo. 61; Vail v. Finning, 44 Mo. 210. The phrase “other original remedial writs,” has been construed by this court to mean, writs of the same class or genus, i. e., prohibition and the like. Vail v. Finning, 44 Mo. 214. But it does not' extend to the writ of injunction. Fane v. Charles, 5 Mo. 286. If it were not for these constitutional limitations, and this court was permitted to proceed with the trial of cases according to the course of the common law, its jurisdiction would be freely conceded. In delivering the opinion in State ex rel. v. Faughlin, 73 Mo. 443, Judge Sherwood quotes with approval and grounds his opinion on those axiomatic rules of construction that, “affirmative specification excludes implication, i. e., the expression of one thing is the exclusion of another.” In the application of this undoubted rule of construction to the pending case, it necessarily follows, that the affirmative specifications contained in the constitution of Missouri, that the jurisdiction of the supreme court shall be appellate only, save and except as to the issue of writs of habeas corpus, mandamus, quo warranto, certiorari, and other original remedial writs, excludes all other implications of power Maguire v. State Savings, 62 Mo. 344; JEx Parte Snyder, 64 Mo. 58; State ex rel. v. Laughlin, 73 Mo..448; Dwarris on Statutes, 605. It has been urged by the relator that the inherent power contended for is necessary in order to maintain the honor and dignity of the supreme court, and for a proper and necessary control over its own officers. But the supreme court, as a court, has neither honor, power, nor dignity, aside from the constitution which created it, and by reason of which alone it exists. But, while this is true, it does not follow that it is without power to maintain its honor and dignity; or to control its own officers; or to enforce the orderly conduct of its own business. The people, in whom all primary power rests, unless limited by constitutional self restraint, acting through the general assembly, have expressly granted the necessary powers for that purpose. R. S. 1889, secs. 3261-3265. From a consideration of the foregoing principles and authorities, this proceeding can not be maintained against the respondents in this court on the doctrine of inherent power and summary jurisdiction. (2) The general assembly can not extend the jurisdiction of the supreme court beyond the constitutional limitations noted, hence the statutory enactment attempting to confer upon it jurisdiction in proceedings of this character, is in that particular unconstitutional and void. The relator must either yield this proposition to be true, or on the other hand concede, that the legislature, acting within its own proper sphere, has regulated by statute the admission, control and disqualification of attorneys. R. S. 1889, chap. 11. Regardless of the constitutional question involved, the general assembly has prescribed the manner and the means by which attorneys are admitted; the causes for, and the courts in which they may be ■disqualified; and the form and method by which each is accomplished. These provisions are exclusive. State 
      
      v. Foreman, 3 Mo. 603; Beene v. State, 22 Ark. 149. In and by the provisions of Revised Statutes, 1889, section 612, the legislature has attempted to confer upon the supreme court jurisdiction in relation to the suspension and disbarment of attorneys. In view of what has been already said, under the first proposition of this brief, it might well be doubted, without the citation of other authorities, whether such power could be lawfully granted. But in view of the unquestioned analogous cases decided by this court, in which similar statutes have been nullified, the contention of the respondents is that, that particular part of section 612, supra, which attempts to confer jurisdiction upon this court in disbarment proceedings is unconstitutional and void. The general assembly can confer original jurisdiction upon the supreme court, only in the cases specified in the constitution; in all other cases its jurisdiction must be appellate. Foster v. State, 41 Mo. 61; Binning v. Vail, 44 Mo. 214; State ex rel., etc., v. Flentge, 49 Mo. 488. On the other hand, if it be held that this section is a valid constitutional grant of power and confers on the supreme court jurisdiction in disbarment proceedings, then on the same grounds, the provisions of the whole chapter must be upheld. In the latter event, the charges in this case being for an indictable offense, and no indictment having been found, the relator is precluded,’ and the case not triable before the court. R. S. 1889, secs. 616-620. Wyotts v. Stephens, 36 Pac. Rep. (Cal.) 586. If the provisions of the statute be valid and binding, by reason of what prerogative are they to be disregarded? If valid, are they to be enforced or not enforced, as may suit the will and pleasure of him who seeks to prosecute attorneys for alleged unprofessional conduct? No such argument or construction should be allowed to prevail. The statute is either void or in force. If void this court has no jurisdiction. If valid it is bound by the provisions of the statute and the relator has no standing in court. (3) Neither by the common law, nor by the statutes of the state of Missouri, is the attorney general, in virtue of his office, authorized or empowered to institute or prosecute disbarment proceedings of this character or of like nature. The constitutional provision which provides for and creates the office of attorney general, declares that he shall perform such duties as may be prescribed by law. Const. 1875, sec. 1, art. 5. The powers and the duties of the attorney general are as broad as the law, but beyond that he can not go. His powers and his duties are defined by the law, and by it he is equally bound, in common with the most humble citizen of the state. Notwithstanding the obiter dictum of Martin, C., in the case of State ex rel. v. Kemp, 82 Mo. 213, and notwithstanding, too, the apparent- anxiety to shield these proceedings beneath the sheltering folds of the attorney general’s office, no such authority exists. (4) Any attorney or counsellor at law who shall be guilty of any felony or infamous crime, or improperly retaining his client’s money, or of any malpractice, deceit or misdemeanor in his professional capacity, may be removed or suspended from practice, upon charges exhibited, and proceedings thereon had, as hereinafter provided. R. S. 1889, sec. 611. If the section of the statute set out in the opening lines of this proposition is valid, then the causes for disbarment or suspension enumerated therein are exclusive of all others, and it matters not what causes may have been held sufficient in other jurisdictions. So, too, it has been held by the supreme court of this state, that where the circuit court of St. Louis county disbarred an attorney for a cause other than one of those mentioned in the statutethe judgment could not besustained. State v. Foreman, 3 Mo. 603. (5) The charges and specifications in this case, being founded upon the relator’s misconception of the law, are so contradictory,. incongruous and uncertain that they ought not be sustained regardless of the fact of their established untruth. If the first charge and specification is true, the second, third, fourth and fifth are untrue. If the second is true, it is equally apparent that the first, third, fourth and fifth can not be. If the third is true, the first, second, fourth and fifth are false. If the fourth be true, it is a contradiction of all the others. These charges and specifications whether taken separately or aggregately are insufficient in law, and unsupported by facts to sustain the charges made. The facts upon which this charge must stand or fall have been resolved into these. Messrs. Harber and Knight prepared and filed a brief in the supreme court, on the record then existing; the former making in addition thereto an oral argument therein, knowing that it was not a perfect record of the occurrences at the trial. A full and complete answer to which is that, so long as it remained unchanged by lawful authority, the record then before the court imparted absolutive verity, and they were bound to prepare their brief and make their arguments with reference thereto only, regardless of facts or supposed facts existing outside the record. It could not be changed, altered, supplemented, amended nor contradicted in this court. Holt v. Simmons, 14 Mo. App. 450; Christian v. Wight, 19 Mo. App. 165; Dugan v. Higgs, 43 Mo. App. 161; Watson v. Bac&, 46 Mo. App. 553; State v. Baber, 74 Mo. 292; State v. Underwood, 76 Mo. 630; State v. Musiclc, 81 Mo. 273; State v. Hays, 51 Mo. 576; State v. DeMoss, 98 Mo. 340; State v. Smith, 114 Mo. 423; State v. Dimcan, 116 Mo. 308. It is conceded that the trial court has the same power to amend a bill of exceptions, according to the usages and principles of law, that it has to amend any other part of the record, but no power exists in the trial judge to do so in vacation. Barrier v. Barrier, 58 Mo. 222; Burdoin v. Trenton, 116 Mo. 370. (6) Respondent Knight is not charged with the deceptive acts, by which the attorneys for the state were permitted to deceive themselves, as to the contents of the bill of exceptions when signed, and he can not be disqualified for the doing of an act with which he is not charged. The evidence in this ease discloses the fact that Mr. Knight, unknown to Harber, prepared such a bill of exceptions in the Howell case as he desired, that he did so by putting the matter prepared by him into typewriting, so that the ordinary observer was unable to discover' the fact that it was not the work of the stenographer. In this condition it was submitted to the lawyers for the state, and unaware of the full contents thereof they gave their assent to it, and thereupon the judge signed it; and it was then filed and became a part of the record. This the evidence shows to be true, and with like force and effect the evidence further shows no forgery of the record by Mr. Knight, nor by any other person whomsoever. So far as the charges and specifications are concerned the proof shows him to have done only that which he might lawfully do, otherwise they are unproved and unsustained in every point, parcel and particular. As has been stated, his offending lies not in that which he' did, but in the manner in which he did it. Carried beyond the bounds of professional duty to his client, he may have been, but with that which he actually did, he is not charged, and can not for that reason be disbarred. People v. Allison, 68 111. 151. (7) The evidence discloses the fact, that regardless of the time when the alterations were made in the testimony of witnesses in the Howell case, respondent Harber had no knowledge thereof prior to the time they were made.. The truth of this proposition is fully establisted by all the evidence in the case and there is none to the contrary. His first knowledge was obtained in relation thereto after the record had been made. This record, as we have seen, imported absolute verity. ■ It could not be changed, altered or amended in the supreme court. The case came on for hearing upon the existing record, and he was bound to made his brief and argue the case in accordance with that record. It is an elementary proposition of established practice that in the presentation of cases to courts, lawyers are bound to confine themselves to the facts existing in the record. They are not allowed to discuss facts outside the record whether true or false. Any other rule would tend to confuse and delay the administration of justice. These propositions of established law determine these charges, as against respondent Harber, to bo entirely without substantial or any foundation. The petition should therefore be dismissed and he be allowed to go hence without day. Bradley v. Fisher, 13 Wall. 355.
   Sherwood, J.

The foregoing statement of the controlling facts in this case furnishes a sufficient basis on which to ground the following remarks and expression of our views on the salient points presented by this record, and the briefs and arguments of counsel.

1. And first as to the jurisdiction of this court to entertain and determine- proceedings of this’ character. On this point it would seem there can be no room for two opinions. All courts having power to admit attorneys to their bar, possess as a necessary and inherent incident of such power, the right to disbar them for unworthy behavior. The authorites in this regard will be found collected in the brief of relator. The proposition, however, is too plain to require the. citation of authorities in its support. The majority and minority opinions in Mullins’ case, ante, p. 231, both, concede the correctness of this position.

Taking for granted then the jurisdiction of this court to proceed as above indicated, that such power is inherent, and results of necessity from our organization and attributes as a court, it is unnecessary to inquire whether the legislature has conferred any power on us to suspend or remove an attorney. If it has, we may act under that; if not, then under that which exists regardless of legislative aid or action.

2. And doubtless it was entirely'competent for the attorney general to institute this proceeding. This stands admitted in the majority opinion as well as in that of the minority in the case just, mentioned. Indeed, the authorities cited by relator establish not only this position, but that any member of the bar may put in motion such a proceeding, and that a court in the exercise of its inherent power may require of any member of the bar as a duty, the institution of proceedings looking to the disbarment of another member of the same bar.

3. The charges made by the attorney general against A. Q-. Knight are in substance these:

a. That, taking the typewritten transcripts of the evidence furnished by the stenographer "in Howell’s case, he mutilated and falsified the same or permitted the same to be done by removing therefrom the correctly transcribed testimony of divers material witnesses actually taken at the trial, and in lieu thereof, substituted and inserted false and forged statements that had not been testified to by said witnesses; that after such fraudulent mutilation and substitution, he delivered the false and mutilated transcript to the trial judge, as and for a correct transcript of the evidence, thereby misleading and deceiving him into approving and signing the same as the bill of exceptions in the ease of Howell; that, after being signed, lie delivered the false bill of exceptions to the clerk of the trial court, who, deceived by the fraudulent acts aforesaid, forwarded a transcript of the false bill of exceptions to the clerk of this court.

b. That in similar manner he withdrew the bill of exceptions after its signing and filing and added to the process of mutilation and falsification.

c. That in his abstract of the evidence and brief, and in the printed argument in the ease referred to, he knowingly and fraudulently made false statements touching the true testimony of divers witnesses named in the bill of exceptions, for the purpose of misleading and deceiving this court and thereby securing a reversal of the judgment against his client. The testimony taken herein, establishes the truth of the above charges in respect to everything except clause b.

After the close of the argument here, by permission of the court, A. GL Knight arose and made the following confession:

“In view of the evidence in this proceeding, I desire to make a statement. I know nothing of the law; that branch of it has been discussed in briefs. In regard to the preparation of the bill of exceptions, I have told all I have done. Eor a time I was charged with forgery and perjury, but that charged has been virtually abandoned. It is some consolation to know they have been wiped away. What I have done I do not say was right. I realize that it was not. This was my first murder case, and so far as I am concerned it shall be my last. The other members of the profession can have the rest. I allowed my zeal in this case, which was a big one, to overcome my judgment.
“I prepared a bill of exceptions that was not true. I have always admitted this. I have always told the truth about it as my affidavit and deposition will show. However, I did not originate it. As to the stenographer’s law I knew nothing. We had none in our circuit. In this case the judge brought his with him. The law had been enacted only a few months before. We had always prepared bills of exceptions in our own way and presented to the judge to pass upon it. I may have wofully deceived the attorneys on the other side, but I am not charged with that. I don’t say that is right. I see my mistake now. This has caused me much pain and money out of my own pocket that I am ill able to bear. I paid the expenses of the old mother of the boy, traveling expenses back to her home in Ohio and other expenses. But I don’t care for that. I will undergo any punishment that this court may mete out to me, whatever it may be. But I ask your Honors not to run the plowshare of ruin over me. As much of my honor as I have left, I hope the court will leave me as much as it can. I trust it will not be too severe upon me.”

4. Having disposed of the case of Knight, for the present, we turn to that of E. M. Harber, the other respondent who was jointly charged with Knight in the perpetration of the unprofessional conduct aforesaid, but has been temporarily separated from 'him for convenience of treatment. A careful reading of the testimony contained in this voluminous record, a mere outline of which has heretofore been given, leaves no room to doubt that E. M. Harber is also guilty of at least one of the charges preferred against him, to wit, that of preparing an abstract of the evidence and brief and printed argument in Howell’s case, on what he knew to be a falsified, fraudulent and mutilated bill of exceptions, with intent and purpose to mislead and deceive this court, and thus secure a reversal of the judgment against his client. It seems Harber was the chief preparer of the brief, etc., filed in that case in this court.

In order best to illustrate the pertinacious and pernicious thoroughness which characterized the industrious endeavor to deceive this court in regard to the truth of the matter involved in that record, the abstract of the evidence, the brief and argument prepared by Harber and his associate respondent are here copied: ,

“The nature of some of the points on this record are such as to compel an examination of the entire evidence, and hence any attempt at an abridgment or abstract of the record would be futile, unless we print the entire evidence. It is too' voluminous for this. We desire, however, to set, forth some extracts from the evidence and record, believing that it will the better enable us to clearly present our points, and be of some convenience to the court.
“Extracts of the evidence, on the question of the identity of Nettie Hall, and the corpus delicti.

“James Hall testified:

‘ ‘ ‘The family of Mrs. Minnie Hall, on the nineteenth day of January, 1889, consisted of herself, Willie, a boy right close to eleven years old, not quite, next a little girl by the name of May, right close to nine years5 old, and Nettie was the next one, not far from six years old, am not certain about it, and Eoy, about three years old.’ (Bill of exception, page 2.) It is to be observed at the outset that the above is the only place in all the evidence where even the name of Nettie Hall appears, the person charged to have been killed, ‘ * * * On the east side of the house forninst the cellar door, I think was one of the little girls. She was badly burned. Dead. * * * In fact, all charred. Her head was thrown back. She had long curly hair, and part of the hair on the back of her neck wasn’t burned. Yes, sir; I made an examination hurriedly, nothing more. I think it was on the left side; I am not certain. There seemed to be a piece knocked right off from her head, and her head was open from that back. * * * Yes, sir; before I saw this child T went clear around this building twice.’ Q. ‘I’ll get you to state to the jury if you saw the remains of any of the rest of this family that night or the* next day.’ A. ‘No, sir; I never saw anything but a piece of— Oh, I saw some little pieces of them when we were working in the cellar. We dug the cellar all over, and occasionally we found some small pieces of bones, amongst the rest, a piece of skull that come off -of the forehead, a little piece about as big as a dollar.’ (Bill of exceptions, pp. 9, 10, 26.)

“R. N. Vorce testified:

“ ‘And there was a short space betwixt this bed and that bed, and Mrs. Hall was right there in that space. She was right there, and I started right out here two or three rods or such a matter. There was a clothesline tied to a tree. I tried to get it and couldn’t, but there was a pole standing under the line, ten feet long maybe. I took that pole and Smith and I got it under her here, you know, and tried to get her out. But she was very heavy. It seemed as though she was kind of stuck. We couldn’t raise her up. And just then the floor gave way and under the floor the cellar here, there had been some posts set under the joists through the center, and as the floor gave away here it went that way and left a space here right down to the ground, and here was the cellar door, and right there after it fell in, one of the little girls fell, right opposite this cellar door, right down there. * * * Mr. Smith and I caught around her and pulled her out. * * * She was all afire. We pulled her out and I took my hands and gathered up some mud and water down there and threw .on her to put the fire out. * * * Well, I saw one of the children lying on the foot of the bed. On the foot of that bed I saw Mrs. Hall; there she was; she seemed to be down on her knees; head drawn in that way. The flesh was all torn from her skull. It was as white as chalk. There was a gash cut right in the head. * * * The head of the little girl we got out was cut right off here, and lopped back, and part of her skull open and was gone, and part of it lopped over back, and the hair was burned off; but I saw her hair burn off after she fell into "the cellar. Her mother had kind of — was over here. I didn’t see her until after she fell into the cellar. * * * Got down in the cellar, poured some water down there and put some boards on the debris and fished and got the bodies out that wasn’t burned up. * * * Mrs. Hall’s head was burned off; her limbs were burned off; her arms and legs were burned off; she was all burned up. The condition of the children I saw taken out— well, was nothing but mere little scraps of bones of the two that was in there.’ (Bill of exceptions, pp. 60, 62, 64 and 65.)

“C. J. Ran ah an testified:

‘ * * * Looked over the remainder of the bodies that was left of the people that was burned up there. * * * I examined all of them. * * * Well, the bodies were all burned. There was only just the back bones left of two of the bodies; the supposition about the boy — * * * well, then, I believe one of the bodies was'burned from a little above the knees. That is, the limbs were burned off, the remains burned off, the legs, arms and breast and head, and about all the bowels, was burned out and the skull broken right across, and the fore part of the skull was gone, and the flesh was all burned, and the face, the bones of the face was left, but the flesh was all burned, crisped, and the hair and part of the.scalp was left, and the remainder of the skull that was there — the fire had penetrated the edges of it. I was on the jury (witness meaning coroner’s jury)-. I examined the bodies closely, to see if a knife or bullet or anything had cut them. I found there was nothing went through the brain at all. All that was gone of it was the fore part of the skull, and the hair was left there with blood enough to preserve it from the fire, I expect. * * * The rest of it ‘there was cracked — there was a crack, it .appears to me, that the center of the skull was just a trifle open, kind of open; looked like as though it had been broken from a stroke of some instrument of some kind and broke the skull.'’ (Bill of exceptions, pp'. 80 and 90.)

“Dr. Pettijohn testified:

“‘There was only one body that I saw, that apparently the body of the mother. I did not see the remains of the other persons. That body as it lay in a box, or some such receptacle, on a sled, was in a bent position so that only the trunk was visible. That was in a badly burned condition. The top part of the skull was absent, the face was badly burned, the cartilages burned, nothing left but the lime. The muscular tissues almost entirely destroyed. It was impossible to recognize by the features what the body was.’ (Bill of exceptions, p. 102.)

“Dr. H. H. Pratt testified:

“ ‘ * * * I examined one that was supposed to have been the body of the mother, and that is about all. The bowels, abdominal walls, were burned, destroyed; part of the fore part of the head was gone and the brain exposed and the arms burned off and the hips burned bare, and the face burned; general destruction was the result. The other remains that were there I did not examine specially. I saw they were human remains, that was all.’ (Bill of exceptions, p. 113.)

“Gr. R. Critchfield testified:

“ ‘Well, when I got there * * * one corpse was lying on the seatboard of a wagon in the yard, so we went to work and got as much as we could of the other bodies that wasn’t burned up.’ (Bill of exceptions, p. 174.)

“Henry Smith testified:

“Well, we discovered Mrs. Minnie Hall was in the northeast corner of the building, in the bed-room. * * * Well, right here was Mrs. Hall lying there. Looked to be part of her body on the bed and part on the floor. * * * We tried to pull her out. While we were trying to pull her out on the east side, there was a cellar door that threw one of the little children in front of the cellar door. We got a rod. '* * * The little girl when we took her out looked like she had been hit in the head with something; the skull was cut apart and the top of the scalp was laid back to the back part of the neck.’ (Bill of Exceptions, pp. 222 to 226.)
“In addition to the foregoing evidence, the state introduced witnesses J. A. Pratt (p. 123), Dr. D. C. Orr (p. 372) and John C. Moore (388-9) — , to prove certain alleged confessions of defendant. But it will be observed there is not in all their evidence one word with reference to the alleged homicide or death of Nettie Hall, but that the same has reference solely and specifically to the homicide of Mrs. Minnie Hall and one of her little boys.
“In the foregoing extracts we have taken the most favorable evidence for the state on the question of the homicide or death as well as the identity of Nettie Hall. In fact, in the foregoing will be found substantially all the evidence introduced at the trial of these subjects.”

The following is all that portion referring to the cross-examination of defendant complained of, as it appears in said exhibit:

“CROSS-EXAMINATION OF DEFENDANT.
On the examination of D. C. Orr for the state he testified (page 373):
“Q. I’ll get you to state what conversation, if any, you ever had with the defendant Howell in regard to the murder of Mrs. Minnie Hall; state it in full, to the jury, if any. A. Well, there was several conversations. I had three or four conversations in regard to the matter. Do you want me to state what I know about it?
“Q. Fully what you know about it? A. In the first place he said he was in considerable trouble, and I was in trouble, and we sympathized with each other, but he wrote me some letters. * * *
P.374: “Q. Doctor, what did you do with these letters? A. I turned them over to Denbo, the sheriff.
“Q. Was there anything else besides these letters he gave you? A. A key.
“On examination of Henry Thornton, a witness for defendant, he testified (p. 548):
“Q. Did you see him (Howell) the night before he was arrested? A. I seen him in Brookfield, sir.
“Q. About what hour? A. I seen him half-past nine o’clock. * * * p. 558.
“Q. Did he offer you a cigar? A. He asked me to go and have a cigar. I said no.
On cross-examination of defendant, and against his objections and exceptions, he was compelled by the court to testify, (p.479).
“Q. And while’ in jail wrote letters to Orr, asking him to aid you to escape?”
Defendant objects, because said matters were not referred to by him in his examination in chief. Objection overruled and defendant excepts at the time. A. Yes, after I had been convicted I wanted to escape.
“Q. Did you not give Orr a key you had made, that he might assist you to escape?
“(Defendant objects same as above). Objections overruled and excepts.
“A. I gave him a key. Yes, sir.”
On the cross-examination of defendant he was compelled, against the objections and exceptions of his counsel to testify (p. 435):
“Q. That was the only mortal you spoke to from nine till two? A. It was not.
“Q. Then you spoke to Henry Thornton and gave him a cigar?”
Defendant objects on the grounds that he was not examined about nor did not refer to such matter or to Henry Thornton in his examination in chief. Objections overruled. Defendant excepts at the time. A. No, sir.
“At the time of defendant’s arrest a certain link, claimed by the state to be a deadly weapon, and the possession thereof a suspicious circumstance against him, was found upon his person. Defendant had testified in chief, explaining his possession of said link, and upon cross-examination he was asked (p. 475):
Q. Did you say one word about taking that link for the purpose of giving it to Henry Smith, on either of the former trials of this case?
“Defendant objects to said question because not proper cross-examination, and because he was not examined in reference thereto in chief. Objection overruled and defendant at the time excepted.
“A. I can’t say.
UQ. Are you prepared to deny it?
“Same objection, ruling and exception as above.
11 A. I can’t say I am.
“In very many other respects, on defendant’s cross-examination, his rights were disregarded, and he was, against the objections and exceptions of his counsel, compelled to testify about matters of which he had not been examined in chief. This will be readily noticeable by the court, upon the inspection of bis cross-examination ; and while we do not wish to be understood as waiving any objections made and preserved thereto, we deem the foregoing, wherein he is compelled to corroborate the state’s witness, D. C. Orr, and to contradict his own witness, Henry Thornton, and show his lack of memory as to his former testimony on the trial of this cause, to be so glaring and such an abuse of the rights of defendant, guaranteed to him by both constitution and statute, that a further or more specific reference thereto is unnecessary.”

In the brief (Points and Authorities) the following statements are made and points urged for reversal, referring to the proof of the death or identification of Nettie Hall:

“Points and authorities:
(1) “The evidence on the trial does not establish the alleged homicide or death of Nettie Hall, the person charged in the indictment to have been killed and murdered by the defendant.” (Citing numerous authorities.)
(8) “There is not sufficient evidence, in fact there was not even a scintilla of evidence, to justify or support a finding that Nettie Hall was dead, or that any of the remains were identified as her remains, and therefore defendant’s instruction that ‘under the law and the evidence the jury must find the defendant not guilty,’ should have been given and the defendant acquitted; he is therefore entitled to his discharge here. (Citing authorities.)

In the brief, referring to the cross-examination of defendant, his counsel said:

(2) “The cross-examination of defendant was unwarranted by the law or facts. The law permitted no cross-examination of him upon matters of which he had not been examined in chief; he was not examined in chief in reference to what he had sworn upon any previous trial of this case as to the giving or writing of any letters to Orr or the giving of a key to said Orr. Nor was he examined in chief concerning one Henry Thornton, the seeing of, or giving or offering him a cigar. We doubt if a more flagrant disregard of the defendant’s rights can be found in the books . than appear in this.”
“Argument.
(1) “The allegation of the indictment ‘that Nettie Hall is dead,’ was unproven at the trial. As we understand the law, the very basis of a corpus delicti is the proof that the person charged to have been slain is dead, and that the discovered body or remains be identified as those of such alleged deceased persons, before the next step in the process — i. e., the criminal agency of defendant in such death — becomes important; or as it is sometimes put, ‘beyond the death and the violence remain the two inquiries to which the ascertained criminal fact gives rise: who is the slain and who the slayer? the identity of the one and the agency of the other. It is therefore incumbent upon the state to prove that Nettie Hall was dead; that she came to her death by violence; and the defendant’s criminal agency in producing such death. That the last two of the above propositions may be proven by circumstantial evidence we concede; but grave doubts arise as to whether the first of said propositions, to wit, ‘the death of Nettie Hall,’ can be proven by circumstantial evidence at all or not. * * *
“But, conceding for the sake of argument, that it was competent to prove the ‘death of Nettie Hall’ by circumstantial evidence, and the state is in no better position on this record. For any decision or text-writer that has held to the doctrine that such fact may be established by circumstantial evidence has invariably required that ‘the proof of death be so strong and intense as to produce the full assurance of moral certainty,’ or, as otherwise stated, ‘where presumption is intended to be raised as to the corpus delicti, that it ought to be strong and cogent.’ In the light of this rule, let us examine the probative force of the state’s evidence: Nettie Hall is shown by the state to be at her mother’s house about three weeks prior to the alleged burning of such house on the nineteenth of January, 1889. This is shown by witness Henry Smith, who says on Sunday about three weeks prior to the nineteenth of January, 1889, he was at the house of Mrs. Minnie Hall, and that ‘the children were all there.’ (See Bill of exceptions, pp. 226-241.) When thereafter does the state even undertake to account for the whereabouts of Nettie Hall? They are content to leave this important question to conjecture. Was she in Missouri on the night of this tragedy, or in Kansas with the junior James Hall?”
“But it is shown by the defendant in his evidence that Mrs. Minnie Hall and her children were at her father’s (their grandfather’s), at Sumner, Missouri on the Sunday before the burning of this building. (See defendant’s evidence, p. 429.) This is uneontradicted by any witness and must be taken as true; if not true, it was easily within the power of the state to have contradicted it. Where was Nettie Hall on the night of January 19, 1889? Had .she returned from her visit with her grandfather’s on the Sunday before? No witness so speaks. Indeed, if the facts and circumstances in this record tend to show anything on this question, they tend to show that the remains of but one little girl was ever found in the ruins of this building, for B. N. Vorce and Henry Smith say that one of the little girls fell right opposite the cellar door, and that they pulled her out in front of the cellar door'; and when it is remembered that this was done before the arrival of James Hall at the building, and that when he arrives he sees one of the little girls on the east side of the house against the cellar door, it is inferable that she was the same little girl that Yorce and Smith had pulled out previous, as but one little girl had been rescued or but the one lain by the cellar door. It is not shown what the size of Nettie Hall was. No witness says that he knew her, or any of the bodies rescued resembled her. Not even a ventured guess by any witness that Nettie Hall was of the dead. The color of her hair, the kind of clothing, the personal marks of identity, if any, teeth, form or shape, is all left entirely so to conjecture by this record. It is not even shown that search or any inquiry was ever made by any person for Nettie Hall. In fact, “all the circumstances, proved by the state may well exist and still be entirely consistent with the fact that Nettie Hall was never murdered and that she is still alive.” It may well be doubted if this record discloses a single substantive fact capable of raising even a suspicion that Nettie Hall is dead, much more is it wanting in that chain of facts and circumstances so universally required, and dominated by the law as being ‘cogent and convincing, and excluding all other reasonable hypothesis.’ ‘Mere suspicion, however strong, will not supply the place of evidence, when life or liberty is at stake.’ * * * On the eighth point of our brief, we deem it only necessary to quote as follows: ‘The evidence for the state having been insufficient in law to make out the offense charged in the indictment, the defendant was entitled to a verdict of not guilty at the hands of a jury. He can not, therefore, on well-settled principles, be subjected to another trial, but must be, by the judgment of this court, put in the position in which the verdict and judgment of the court below should have put him.’ ”

In reference to the cross-examination of defendant, counsel said in their printed argument: (5) “The cross-examination of defendant is so flagrantly in violation of the statute, that we have thought it unnecessary to make any further comment upon it than made under our points and authorities, until our attention was called to the recent promulgation of this court in the case of the State v. Avery, 21 S. W. Rep. 199. In that case the court, speaking through BunaESS, Judge, sustains the cross-examination of defendant as proper ‘for the purpose of showing that the man Thompson was no other person than the deceased, whom defendant had testified killed himself, and came within the express provisions of the statute, confining the cross-examination in cases of this kind to the examination in chief.”

“But the learned judge goes further and says: ‘It was also competent for the purpose of laying the foundation to contradict him.’ This last paragraph is not sustained by any decision in this state, and . must be considered as mere obiter dictum. In fact, the rule in this state is directly to the contrary. The cases cited by the learned judge on this proposition, hold the contrary without an exception. In the case of the State v. West, 95 Mo. 140, quoted, the cross-examination of defendant was sustained on the grounds of eliciting information concerning a matter about which defendant had testified in chief, i. e., ‘the state of his mind.’ Judge Bhace, in speaking for the whole court and after quoting the statute, says: ‘R. S. 1879, sec. 1918. If the defendant, testifying in his own behalf, may be contradicted and impeached the same as any other witness in the ease, he is liable to have his credibility impeached by proof of former inconsistent statements. State v. Brooks, 92 Mo. 542; 1 Greenlf. Evid., sec. 462. The inconsistent statements, however, that can be shown for this purpose on his cross-examination, must be confined to those made concerning a matter referred to by him in his examination in chief.’

“Such has been the constant interpretation of this statute, and it is indeed susceptible of no other construction. By plain statutory provision ‘he shall be liable to cross-examination as to any matter referred to in his examination in chief.’ There is nothing ambiguous or uncertain in the language. It is clear that it was the intention of the legislature to prohibit the cross-examination of a defendant about any matter not referred to in his examination in chief, and so it has been continuously, and without a single departure, held, until the decision in the Avery Case. But it is claimed warrant is found for this departure in the fact that the statute permits the defendant to be contradicted or impeached as any other witness. Those are no new words, but have been a part of this statute since its enactment, and we repeat, no such construction was ever before given them, as given in the Avery case.”

“We do not question that where a defendant becomes a witness he puts in issue his general character, and that it may be attacked, impeached, the same as any other witness; until he has become a witness, no evidence can be admitted to impeach him. Nor do we question that when a defendant becomes a witness and his testimony is in anywise materially different from his previous statements, such statements may be shown; but it is not at all necessary to the contradiction of the defendant, by showing such previous inconsistent statements, that he be cross-examined in reference thereto, his attention called to the time and place of making the same. He is the party at interest, and any statement he has made against his interest, or in contradiction of his testimony, may be shown, and in order to so do, it is not necessary to ‘lay any foundation.’

“The error of Judge Btjbgess in the Avery case is apparent, and is indeed a very natural one. He assumes that before the defendant can be contradicted by showing statements inconsistent with his testimony, his attention must be called to such statements, the time and place of making same, for he says, in justification of the cross-examination of defendant, ‘it was also competent for the purpose of laying the foundation to contradict him.’ We repeat, it is entirely unnecessary to lay any foundation, to call any party at interest attention to any admissions or contradictory statements in order to the introduction of such statements; keeping this distinction in view, full force and effect can and has always been given every provision of this statute, but to ignore the inhibition against the cross-examination of defendant about the matters not referred to in his examination in chief, or to permit such examination under the pretext of ‘laying a foundation for his contradiction/ renders worse than useless such statute. It, in fact, by judicial construction, turns a legislative enactment, which was intended by the legislature as a protection and benefit of defendant, into a delusion and a snare. What kind of cross-examination must there be that can not be justified on the pretext that ‘it was for the purpose of laying the foundation to contradict him?’

“The case at bar furnishes a good illustration of the fallacy of this claim. Prior to defendant being introduced, one Orr had testified that defendant had written him, Orr, some letters, asking him, Orr, to assist him, defendant, to escape. That defendant had also given him, Orr, a key, that he, Orr, might aid defendant to escape.

“On the cross-examination, of defendant, he was asked about the writing of the letters and giving of the key to Orr, to aid him to escape, and though he had not mentioned such matter, or even Orr, in his direct examination, he was compelled by the court to answer such question, and thus contradict one of the state’s witnesses on a vital and important point. He was compelled to admit the damaging facts testified to by Orr. In these particulars and upon what pretext can this cross-examination be justified? Can it be said, you had to admit it and are therefore not hurt; or that you were being quizzed for the purpose of laying the foundation to contradict you? For if you had denied these statements of Orr, Orr would have been recalled, and contradicted you. The effect of this would be, in all cases where defendant- becomes a witness, he can be compelled to corroborate the state’s witness, or if he fail to so do, contradicted by them, and such cross-examination justified. Not on the grounds of compelling the defendant to corroborate witnesses on material facts against him, but if the reasoning in the Avery case to be followed on the assumption that he would deny such facts, and was being asked in reference thereto that he might be contradicted. But suppose, as in this case, defendant is compelled to corroborate, to admit the damaging facts testified to against him, we ask in all seriousness upon what ground can such cross-examination be justified. The competency of such cross-examination, can not justly be made to depend upon defendant’s answer, but if, in making answer, he is compelled to give evidence against himself, admit the damaging facts testified to by other witnesses, then no contradiction can be had, but if he denies such conversation (or facts), then it is said the examination was proper to lay the foundation for his contradiction.

“On the further cross-examination of defendant, and before one Henry Thornton was examined, the state (evidently having been posted as to what the testimony of Henry Thornton would be in reference to thetime of his, Thornton’s, seeing defendant and offering him a cigar, and desiring to break the force thereof in advance), asked defendant, on cross examination, and he was compelled to answer that he did not see Henry Thornton and give him a cigar on the night of the alleged tragedy, and this, too, though no mention was made of Henry Thornton by defendant, in his examination in chief. When Henry Thornton was examined he testified to the seeing of defendant upon the night mentioned, and defendant’s offering him a cigar. Then defendant is compelled to advance to contradict his own witness; was this in order to lay the foundation to defendant’s contradiction? It was certainly improper in any view of the case.

“Not content with making defendant corroborate D. O. Orr, one of the state’s witnesses, ‘who comes dripping with slime,’ and contradict in advance his witness, Henry Thornton, the state proceeds, with the consent of the court and against defendant’s objection, to cross-examine him about what he had previously testified on the trial of this cause. Why this? Did the state desire to show defendant’s lack of memory, create the impression with the jury that he was testifying differently from what he had previously testified, without daring to give him the benefit of his previous testimony, or was it for the purpose of laying the foundation to contradict him? This was unnecessary and highly improper. All that he had said in his previous testimony or in reference to this ease was competent, and no foundation was necessary to be laid to warrant its admission. The dictum in the Avery case, before mentioned, can not stand, and this court should take the first opportunity to express its disapproval thereof. The cross-examination of the defendant in the case at bar on the matter mentioned, and others that might readily be suggested, can not be justified by any legitimate process of reasoning, due regard being given to the constitutional and statutory rights guaranteed to a defendant on trial for his life.

“The evidence in this cause being, as it is, clearly insufficient to establish the death of Netty Hall, we might well have contented ourselves by simply calling attention thereto, and our confidence in this point is our excuse for not mentioning, in this argument, points fatal to the action of the lower court, to which attention is called under our ‘points and authorities.’ But the action of the lower court in overruling defendant’s application for a continuance, by reason of the state admitting the statement of ¥m. Adams as his evidence, and in admitting evidence of defendant’s attempts to break jail after his conviction, and the giving of instruction number 9, calling the jury’s attention specifically to said attempts, and the unfavorable presumption to be drawn therefrom, without mentioning the fact that he was then under sentence of death, or telling them that they might take that fact into consideration, in determining what weight should attach to said attempts, as well as its action in giving instruction number 4, by which defendant is singled out and the jury virtually told to view with suspicion (and disregard, unless corroborated) his evidence and the cross-examination of defendant, are all so far-reaching in their effects, and grossly improper, that we deemed it our duty to call the attention of this court thereto, that it might set right the .dictum in the Avery case, and express its disapproval of the action of the nisi prius court on the other matters mentioned, and this we trust the court will do, even though it does, as we respectfully submit it must, hold the evidence insufficient, and order defendant discharged.

“Respectfully submitted,

“A. W. Mullins and Hakbeb & Knight, “Attorneys for Defendant.”

More conspicuous evidence of the guilt charged than is furnished by these papers, and by the admission by Harbor that he prepared, or assisted in their preparation, knowing that the statements they contained in reference to the corpus delicti, and the cross-examination of Howell, were utterly false, could not in reason be demanded; the evidence is conclusive and amounts to absolute proof.

Our statute require that a person on his admission to the bar shall take the constitutional oath, and further, “An oath that he will faithfully demean himself in his practice, to the best of his knowledge and ability.” R. S. 1889, sec. 608. What is such faithful demeaning himself in his practice, is to be determined by the adjudicated eases and by legitimate deductions from the principles they announce. No court has yet ventured by anticipatory utterance to declare and define the precise boundaries of an attorney’s professional duty, or what would constitute a breach thereof. A court would not venture to do this in advance, any more than it would venture to foreshadow and define the precise limitations and description of a word which, as the representative of a fact, constitutes the most ancient foundation of a court of equity, to wit, fraud. But for all that, courts of equity do not fail every day to exercise their ancient jurisdiction, and to decide when a cause falls within the meaning of that undefined and indefinable term. • So in cases of unprofessional conduct on the part of attorneys; whenever they so conduct themselves as to be unworthy of the trust and confidence which is involved in their official oath, and which the court has a right to repose in them as officers of the court, and in the honesty and integrity which should characterize them in the performance of their professional duties, then the court may remove them from their official position. Cases, not a few, go even further than this, and strike attorneys from the rolls for conduct not strictly within the confines of their professional duties, eases of which-it is not now necessary further to speak.

Our statute already quoted is doubtless declaratory of the common law so far as it goes; it may even be sufficiently comprehensive to embrace all cases, and certainly it is construed by section 611 of the same chapter to embrace not only crimes committed by an attorney, but the improper retention of a client’s money, and any malpractice, deceit or misdemeanor in his professional capacity. These terms are, indeed, very comprehensive and embrace within their scope an indefinite variety óf canses for striking an attorney’s name from the rolls. But the better doctrine as before stated we believe to be that a court which has the power to admit, has the inherent power, also, to remove one who has shown himself unfit longer to remain a member of an honorable and trusted profession.

The case at bar, however, is one too plain to require any nice inquiry as to whether it falls within the narrow domain of statutory definition or the broader one of inherent and common law power in this court, since it is plainly a case of deceit practiced on this court by members of this bar, and the fact that such deceit was not sucessful is owing to no fault of theirs; so far as in them lay, they misled and deceived, for a time, at least, this court. It is unnecessary that we go into any extensive discussion of the subject of the relations of attorneys toward the court of which they are members; their duties and obligations in their professional capacity; since this subject and the authorities pertinent thereto, have been so exhaustively discussed by Judge Gantt in his dissenting opinion in Mullins’ case (which is but a branch of this one), as to leave nothing to be desired. Being entirely satisfied with his views therein, we adopt them as our own and make them part of this opinion.

5. It is insisted for respondents that inasmuch as the falsified record of the bill of exceptions in Howell’s case, “imported absolute verity,” respondents “were bound to prepare their brief and malte their arguments with reference thereto only, regardless of the facts existing outside of the record.” But this argument, to give it such an appellation, is a mere evasion of the true issue which is, whether attorneys who have mtitilated and falsified the transcript of evidence designed for a bill of exceptions, and thus deceiving the trial judge into signing the false bill, or who have connived at such falsification, and built their briefs and arguments upon it, can escape for this violation of their official obligation, on the ground of their own consmnmated fraud. If so, then malpractice and deceit are made very easy and punishment therefor very difficult; in fact, impossible, because all an attorney would have to do under this novel theory, would be to procure the false hill to he signed, then taking shelter beneath the aegis of its “absolute verity,” defy all known means of prosecution and punishment. If this anomalous theory were correct, then division number two of this court was certainly wrong, when, on affidavit, filed by the attorney general, it set aside the submission in Howell’s ease; made such orders and took such steps as restored the evidence as it originally was, thus striking down the hand of fraud and balking its nefarious machinations.

It is needless to discuss the subject further. The premises considered, we hold the evidence abundant, made up largely of his own admissions as a witness, that Harber is guilty in manner as aforesaid; that Knight, both on the evidence and on his own confession in open court, is guilty of all the charges preferred against him, save one heretofore mentioned.

In consequence of these findings, however much we may regret the unpleasant task allotted to us of striking from the rolls the names of two members of the bar, we can not allow the emotions of sympathy to interfere with the demands of stern and imperative duty, and therefore we are constrained to adjudge that, they and each of them, the said Harber and Knight have been guilty of such unprofessional conduct as to render them unfit longer to remain members of the bar of this court, and judgment will be entered accordingly, with costs.

Burgess, J., not sitting, Brace, C. J., Gantt, Macfaelane and Robinson, JJ., concurring. Barclay, J., does not vote upon the merits, being in doubt as to the authority of this court in a case of this sort to enter the judgment announced.  