United States v. Kepner

SMITH, J.:

Thomas E. Kepner, an attorney-at-law, was charged in the Court of First Instance of the city of Manila with the crime of estafa , alleged to have been committed by him by indorsing a warrant of the Insular Government made payable to his client, Aun Tan, and collecting and appropriating to his own use the amount due thereon without the authority or consent of the latter. The accused was tried on the charge and after hearing the evidence of both sides the trial judge was of the opinion that there was evidence tending to show that the appropriation of the amount of the warrant was made under a bona fide claim of right. He therefore acquitted the defendant and the fiscal appealed.

Wong Cheong and Aun Tan, Chinese bakers, were charged before a military commission with illegally having in their possession some four hundred sacks of commissary flour, the property of the United States, against the statute and military regulations in such cases made and provided. On March 24, 1901, while they were in confinement, O.C. Hing, a Chinese friend of the parties, retained Kepner to obtain their release on bail and to defend them before the military court. It was agreed that the attorney should receive for his professional services $300, Mexican, cash, and $700, Mexican, additional on condition that he save Wong Cheong and Aun Tan from fine or imprisonment, and secured the release of the flour which had been seized by the authorities.

After obtaining the release of his clients on $3,000, Mexican, bail and taking their statements, Kepner came to the conclusion on the 1st of May, 1901, that both were guilty of the offense with which they were charged and that in no event would he be able to procure a release of the flour. He therefore told the accused Chinamen as well as Hing "that it was absolutely out of the question to stand by the original agreement," and offered to return the $300 which had been already paid.

He finally allowed himself, however, to be persuaded to continue with the case for a consideration, which he says was an unconditional fee of $500 payable on the determination of the cause. Hing says no agreement for an unconditional fee was ever made. His story is that after Aun Tan had been released on bail Kepner declared that he could not get the flour back and proposed that contingency should be eliminated from their understanding.

To this proposition Hing consented and Kepner agreed to secure Wong Cheong and Aun Tan against fine or imprisonment for the sum of $500 in addition to what he had previously received. The trial of the two men took place about the 4th of May, 1901, and resulted in the acquittal of Wong Cheong and the conviction of Aun Tan, who was fined $1,000, gold, and paid it. On the 9th of May Kepner sent Hing a bill "for services in re the United States vs. Wong Cheong and Aun Tan, as per agreement, $500."

Hing flatly refused to pay the account on the ground that Aun Tan had been fined and that there was nothing due under the terms of the contract. On June 20 Kepner apparently yielded the point, for on that date he borrowed from Hing, his alleged debtor, $150, which he promised to repay on or before the 20th of July next insuing. This he would scarcely have done if Hing had been indebted to him at the time in the sum of $500 for services which he asserted had been then fully completed.

On the first of July, 1901, Hing went to the office of Kepner and asked him to make an effort to get the fine remitted and the confiscated flour returned. Hing says Kepner agreed to obtain the restoration of the fine and the and the flour for the sum of $1,000, Mexican.

Kepner says he agreed to get back the fine for consideration of $500, Mexican, and "that no agreement had been reached on the flour proposition" nor anything said on the subject beyond a conversation touching the making of an application for its recovery, and an offer for its part to do the work for $500. Kepner presented his petition for the remission of the fine, but for it had been acted upon officially, so far as appears from the evidence, he again made a demand on Hing for money, which was refused.

Considering, however, that the appellant had obtained the acquittal of Wong Cheong, Hing allowed him $250 in settlement of the second contract, and the offer would appear to have been finally and definitely by Kepner in his letter of the 12th of August, 1901, in which he says: DEAR MR. HING: I am surprised that you should say that you only owe me $250,but until the fine is returned I will let it go that way. I have received from you $150.00 Clothes 36.00 Balance due on collections 21.25