ATTEMPT TO COMMIT CRIME ATTORNEYS DEBARRED. 71

ATTEMPT TO COMMIT CRIME.

An indictable attempt to commit a crime is such an intentional preliminary guilty act as will apparently result in a deliberate crime. Brown, 95–685. The acts constituting the alleged attempt should be set forth in the indictment. Brown, 95-685.

On indictment for an attempt to commit burglary, some overt act of defendant, which in the ordinary course of things would result in the commission of the crime, must be alleged and proved. Colvin, 90–717.

An attempt to commit a felony, some act being done amounting to an attempt to accomplish the purpose without doing it, is a misdemeanor. Jordan, 75-27.

An indictment charging an attempt to kill by administering a poisonous drug, and an attempt to produce an abortion by the same means, is not demurrable for a misjoinder, since both offenses are misdemeanors at common law of the same grade. Slagle, 82-653.

An attempt to commit a crime is not per se indictable, but some overt act must be charged so as to show that the attempt is criminal. Hefner, 129–548. In an indicment for an attempt to steal it is not necessary to specify the particular articles intended to be stolen. Utley, 82-556.

ATTORNEYS DEBARRED.

Sec. 50 (211). For crime.

No person who shall have been duly licensed to practice law as an attorney shall be debarred or deprived of his license and right so to practice law, either permanently or temporarily, unless he shall have been convicted, or in open court confessed himself guilty, of some criminal offense showing him to be unfit to be trusted in the discharge of the duties of his profession, and unless he shall be debarred according to the provisions of this chapter.

Code, s. 26; 1870-1, c. 216, s. 4.

[See chapter 941, Laws 1907.]

CONFESSION MUST BE VOLUNTARY.-The admission of an attorney that he wrongfully retains his client's money, such admission being made in answer to a rule to show cause why he should not be attached for contempt in failing to pay the money into court in obedience to an order of court, is not a confession "in open court" within the meaning of this statute, since the admission is not voluntary, as when one is charged on indictment and confesses in open court, and besides, to allow his answer to the rules to be used as a confession to establish guilt would be objectionable as a means to compel him to criminate himself on oath. Kane v. Haywood, 66-1.

STATUTE CONSTITUTIONAL. This statute is constitutional, and a judge has no right to debar an attorney, who has never been convicted of a criminal offense, nor confessed such in open ocurt, from practicing his profession simply because such attorney published an article concerning the judge which he considers libelous. The respondent in such case might "try himself," or he

might join issue as to the facts and justify by showing the truth of the allegations contained in the article for which he was held in contempt. Ex parte Schenck, 65 N. C., 353.

Unnaturalized foreigners can not be licensed to practice law in this state. Ex parte Thompson, 10 (3 Hawks), 355.

Sec. 51. When attorneys disbarred.

That an attorney at law must be disbarred and removed for the following causes by the superior court:

(a) Upon his being convicted of a crime punishable by imprisonment in the penitentiary.

(b) When any judgment is rendered against him for money collected by him as an attorney and retained by him without any bona fide claim thereto or to any part thereof.

That an attorney at law may be disbarred or suspended at the discretion of the court:

(a) Upon its being found by a jury that he has been guilty of and conduct in the practice of his profession involving willful deceit or fraud.

(b) That he has by himself or another solicited professional business.

Proceedings for the disbarment or suspension of an attorney under this act shall be instituted and prosecuted only by the committee on grievances of the North Carolina Bar Assocation.

1907, c. 941.

[For method of procedure for the disbarment of attorneys see chapter 941, public laws 1907. All acts in conflict with the act of 1907 repealed.]

AUTOMOBILES.

Sec. 52 (3793). Automobiles, ordinances regulating.

If any person shall violate an ordinance prescribed by the board of commissioners of a county regulating the speed of automobiles, motor-cycles and other like vehicles, or governing the use of the same, he shall be guilty of a misdemeanor, and be fined not exceeding fifty dollars or imprisoned not exceeding thirty days. This section shall not apply to Mecklenburg or New Hanover counties.

1905, c. 331.

Sec. 53. Unlawful use of forbidden.

If any person shall unlawfully take and carry away any automobile or electrical vehicle of any nature, kind or description whatsoever, the property of another person, secretly and against the will of the owner of said property, with intent to deprive the owner of

said property of the special or temporary use of the same, or with the intent to use said property for a special or temporary purpose, the person so offending shall be guilty of larceny, and punished by imprisonment in the state's prison or county jail not less than four months nor more than ten years, in the discretion of the court: Provided, this section shall not be construed to repeal any other section for larceny.

1907, c. 126.

BAIL.

Sec. 54 (266). Appearance; security for costs or fine.

Any person required to give a bond or undertaking, or required to enter into a recognizance for his appearance at any court, in any criminal proceeding, or for the security of any costs or fine in any criminal action, may also execute a mortgage on real or personal property of the value of such bond or recognizance, payable to the state of North Carolina, conditioned as such bond or recognizance would be required, with power of sale, which power shall be executed by the clerk or justice of the peace in whose court said mortgage shall be executed, upon a breach of any of the conditions of said mortgage: Provided, that where such mortgage upon real property is executed before a justice of the peace the power of sale shall be enforced by the clerk of the court of the county in which the criminal proceeding is had: And provided further, that no such mortgage on real property executed for the security for costs or fine shall allow a longer time for payment of said costs or fine than six months from the execution thereof, and no mortgage on personal property a longer time than three months, except in cases of appeal, when the time allowed shall be counted from the date of the final decision in the cause: And provided further, that all legitimate expenses of sale, which shall only be made after due advertisement according to law, shall be paid out of the proceeds. of the sale of the mortgaged property, as shall also the following fees, to-wit: For each sale of real property mortgaged under this section the clerk shall receive two dollars, and for each sale of personal property mortgaged under this section the clerk or justice of the peace who enforces the power of sale shall receive one dollar. Code, s. 120; 1874-5, c. 103, s. 3; 1891, c. 425, ss. 1, 2, 3.

ing or recognizance for his appearance at any court in any criminal proceeding, or for the security of any cost or fine in a criminal Sec. 55 (267). How cancelled; effect.

Any mortgage given by any person in lieu of bond or undertak

action, which has been registered, when the party made his appearance at the court to which he was bound and did not depart the court without leave, or paid the cost or fine required, may be canceled or discharged by the clerk of the court of the county where such action was pending by entry of "satisfaction" upon the margin of the record where such mortgage is recorded, in the presence of the register of deeds or his deputy, who shall subscribe his name as a witness thereto, and such release shall have the effect to discharge and release all the right, title and interest of the state of North Carolina in and to the property described in such mortgage.

1905, c. 106.

Sec. 56 (3280). Bill pending appeal.

When any person convicted of a misdemeanor, and sentenced by the court, shall appeal, the court shall allow such person to give bail pending appeal.

Code, s. 1181; R. C., c. 35, s. 12; 1850-1, c. 2.

Sec. 57 (3209). Who may take, before imprisonment.

Officers before whom persons charged with crime, but who have not been committed to prison by an authorized magistrate, shall be brought, shall have power to take bail as follows:

1. Any justice of the supreme court, or a judge of a superior court, in all cases.

2. Any justice of the peace or chief magistrate of any incorporated city or town, in all cases of misdemeanor, and in all cases of felony not capital.

Code, s. 1160; 1868-9, c. 178, subc. 3, s. 29; 1871-2, c. 37.

Sec. 58 (3210). Who may take, after imprisonment.

Any justice of the supreme court or any judge of a superior court shall have power to bail persons committed to prison charged with crime in all cases; any justice of the peace or chief magistrate of any incorporated city or town shall have the same power, in all cases where the punishment is not capital.

Code, s. 1161; 1868-9, c. 178, subc. 3, s. 30.

Sec. 59 (3226). Bail may arrest and surrender principal; effect on liability.

The bail shall have liberty, at any time before execution awarded against him, to surrender to the court from which the process issued, or to the sheriff having such process to return, during the session, or in the recess of such court, the principal, in discharge of himself; and such bail shall, at any time before such execution

awarded, have full power and authority to arrest the body of his principal, and secure him, until he shall have an opportunity to surrender him to the sheriff or court as aforesaid; and the sheriff is hereby required to receive such surrender, and hold the body of the defendant in custody, as if bail had never been given: Provided, that in criminal proceedings, the surrender by the bail, after the recognizance forfeited, shall not have the effect to discharge the bail, but the forfeiture may be remitted in the manner provided for.

Code, s. 1230; R. C., c. 11, s. 5; 1777, c. 115, s. 20; 1848, c. 7.

Sec. 60 (3227). Person surrendered may give bail; sheriff liable for release.

Any person surrendered in the manner specified in the preceding section, shall have liberty, at any time, before final judgment against him, to give bail; and in case of such surrender, the sheriff shall take the bail bond or recognizance to the succeeding court; and in case the sheriff shall release such person without bail, or the bail returned be held insufficient, on exception taken the same term to which such bail bond shall be returned, and allowed by the court, the sheriff, having due notice thereof in criminal cases, shall forfeit to the state the sum of one hundred dollars, to be recovered on motion in like manner as forfeitures for not returning process, and be subject to be indicted for misdemeanor in office; and it shall be the duty of the prosecuting officer to collect the forfeiture; and, in case of a release, the sheriff shall be liable for an escape, and may be prosecuted and punished as provided for in the chapter entitled Crimes.

Code, s. 1231; R. C., c. 11, s. 6; 1827, c. 40.

SURETIES ON BAIL-BOND MAY ARREST PRINCIPAL.-The sureties on a bailbond for the appearance of a defendant in a criminal case in the United States district court of another state may arrest their principal in this state, or they may appoint an agent to make the arrest or assist them in doing so. Lingerfelt, 109-775.

The right of the sureties to arrest the principal is not extinguished because the recognizance is declared forfeited by the default of the principal to appear, and a scire facias ordered. Lingerfelt, 109-775.

A surety can surrender his principal to the court or sheriff at any time before execution. Schenck, 138-560.

The condition of a bail bond is not performed by the appearance, conviction and sentence of the defendant. Schenck, 138-560.

EXTENT OF BOND.-A bail bond binds to three things: (1) to appear and answer; (2) to stand and abide the judgment; (3) not to depart without leave of the court. Each of these particulars is distinct and independent. Schenck, 138-562.