In Re Stiers

BeogdeN, J. The record presents two questions of law: 1. Did the State have a right to appeal from the judgment rendered? 2. Does a plea of nolo contendere constitute a “conviction or a confession in open court, State or Federal?” The law recognizes and prescribes two methods for disbarring an attorney. Committee on Grievances of Bar Association v. Strickland, 200 N. C., 630, 158 S. E., 110. Such proceedings are in the nature of civil actions. In re Ebbs, 150 N. C., 44, 63 S. E., 190. The statutory method of disbarment is prescribed by C. S., 208 to 215 inclusive. However, the proceeding in the present case, was fashioned and presented in accordance with C. S., 205. C. S., 205 was finally enacted as chapter 64, Public Laws of 1929. Section 205, existing prior to 1929, was expressly repealed by said chapter 64, and a new section 205 enacted as a complete unit of legislation. The second section of said chapter 64 expressly repealed all laws and clauses of law in conflict therewith and provided that the act should be in force from and after its ratification. It is an elementary proposition of law that the State cannot appeal either in civil or criminal actions unless such right is given by the lawmaking power of the State. It is apprehended that the reason for such a policy is built upon the idea that when the State in its sovereign capacity brings a citizen into its own tribunals, before its own officers, and in obedience to its own processes, and loses, that its avenging hand should be stayed except in unusual cases where the power to appeal is expressly conferred. The right of appeal is given the State in C. S., 215, but C. S., 215 is a part of chapter 941 of the Public Laws of 1907, which committed disbarment proceedings, for causes therein specified, to the initiative of the grievance committee of the North Carolina State Bar Association. Chapter 64 of the Public Laws of 1929, in accordance with which the present proceeding was conducted, is a complete act in *50 itself and confers no right or power of appeal upon the State. Consequently, the trial judge was warranted in dismissing the proceeding. Furthermore, the trial judge was warranted in dismissing the proceeding upon the ground stated in the judgment, that is to say, that a plea of nolo contendere does not amount to a “conviction or confession in open court” of a felony. This Court, considering the nature and quality of such a plea in S. v. Burnett, 174 N. C., 796, 93 S. E., 473, said: “A plea of nolo contenders, which is still allowed in some courts, is regarded by some writers as a g-uasi-confession of guilt. Whether that be true or not, it is equivalent to a plea of guilty in so far as it gives the court the power to punish. It seems to be universally held that when the plea is accepted by the court, sentence is imposed upon a plea of guilty. The only advantage in a plea of nolo: contendere gained by the defendant is that it gives him the advantage of not being estopped to deny his guilt in civil action based upon the same facts. Upon a plea of guilty entered of record, the defendant would be estopped to deny his guilt if sued in a civil proceeding.” Consequently, as a disbarment proceeding is of a civil nature, the mere introduction of a certified copy of an indictment, and judgment thereon, based upon a plea of nolo contendere, is not sufficient to deprive an attorney of his license; certainly, when he is present in court, denying his guilt and strenuously contending that his fault, if any, rested upon a technical violation of a statute. Affirmed.