or district courts of this district until further order therein.

All of which matters are true, and as far as relate to the action of the court therein shown and set forth in the records of said court and the papers therein.

And, further answering, he says that J. B. Wall at no time denied active participation in the hanging as charged, nor answered the spirit and substance of said charge.

granted by this court to show cause why a mandamus should not issue, states: "That, during a session of the Circuit and District Courts of the United States at Tampa, in said Southern District of Florida, he, the said James W. Locke, presiding, on the 6th day of March, A. D. 1882, at the adjournment of said courts for dinner, at about one o'clock of said day, as he was passing from the court-house, a prisoner was being brought to the jail in the same yard by two officers; that, upon his return to the That when the motion for continuance was court-house, after dinner, in a little more than withdrawn by him, and the demand made that an hour, the dead body of the same prisoner proof be made of the charge, upon inquiry your hung from the limb of a tree directly in front of respondent ascertained that both the sheriff and the court-house door; whereby he became per- mayor, who had alone opposed the action of the sonally informed of the commission of a most mob, and the only parties present not active serious offense against the laws. The same after-participants, were absent from the city, and noon he was informed of the active participation in said crime of one J. B. Wall, an attorney of said court, by an eye-witness in whom the most implicit confidence could be placed, but who declined to make any charge or affidavit of such fact, on account of a fear of said Wall's influence and the local feeling it would cause against him, the said witness.

That not only from the direct statements of eye-witnesses, but from numerous other sources, reliable information of like import was received; whereupon said J. B. Wall, your petitioner, was, on the said 7th day of March, during a session of the Circuit Court of the United States, in open court, charged in writing by the respondent herein, as judge, with having, with an unlawful, tumultuous and riotous gathering, he advising and encouraging thereto, taken from the jail of Hillsborough County, and hanged to a tree by the neck until he was dead, a man to the court known only as John; and cited by rule served upon him to show cause by eleven o'clock A. M. of the next day, the 8th day of said March, why his name should not be stricken from the roll of attorneys and he prohibited from practicing in the U. S. Courts of said district.

That, at said time of return, said J. B. Wall appeared, in person and by counsel, and moved that whereas said rule had charged him with a criminal offense, indictable by the grand jury of the courts of the State, the matter be continued until after the meeting of such grand jury; and the matter was held under advisement by the court and continued until next day.

That, at the opening of the court the next day, before any order had been made upon the pending motion, came said J. B. Wall and withdrew said motion for continuance, and filed answer demurring to the right of the court to issue the rule served upon him, because (stating the contents of Wall's answer) and demanded that proof be had of the matter charged.

That, thereupon, Peter A. Williams, Esq., U. 8. Marshal for said district, being duly sworn, testified as follows: (stating the testimony of Williams, as before given).

Whereupon J. B. Wall, being himself present and stating that he had no testimony to offer, and desiring to be heard by counsel, was so heard, and the court took the matter under con

sideration.

Afterwards, to wit: on the 10th day of March aforesaid, the matter having been fully and duly considered, it was ordered that J. B. Wall be prohibited from practicing at the bar of circuit

could not be summoned to testify without unadvisable delay; of all of which said J. B. Wall had knowledge.

That on account of the excited state of feeling existing at the time, the timidity of many, from the influential position of some of those engaged in the hanging, and the sympathy of others with the lynchers, it was not advisable to attempt to compel any resident of said City of Tampa who was found to have personal knowledge of the matter, to testify against said J. B. Wall.

That said J. B. Wall had every opportunity to explain his presence and action in the matter as proven, if innocent, but made no attempt to do so.

That the evidence, although of but a single witness, for grounds already stated, was to your respondent positively conclusive beyond a reasonable doubt that said J. B. Wall had been guilty of active participation in a most immoral and criminal act, and a leader in a most atrocious murder, in defiance and contempt of all law and justice, and had thereby shown himself unfitted to longer retain the position of an attorney in any court over which your respondent might have the honor to preside.

Wherefore and upon which showing your respondent would most humbly submit to your honors that said order prohibiting said J. B. Wall from practicing as attorney should not be revoked nor he restored to the rights and privileges of an attorney of said courts.

James W. Locke,

U. S. Dis. Judge, So. Dis. Fla. Key West, Fla., Dec'r 2, 1882." It will be perceived that the rule to show cause, which was served upon the petitioner, contained a definite charge of a very heinous offense, and that an opportunity was given to him to meet it and to exonerate himself if he could do so. It would, undoubtedly, have been more regular to have required the charge to be made by affidavit and to have had a copy thereof served, with the rule, upon the petitioner. But the circumstances of the case, as shown by the return of the Judge, seem to us to have been sufficient to authorize the issuing of the rule without such an affidavit. The transaction in which the petitioner was charged with participating, was virtually in the presence of the court. It took place in open day, in front of the court-house, and during a temporary recess of the actual session of the court; and the awful result of the lawless demonstration was exhibited to the Judge on his return to the court

room. Under the intense excitement which pre-ercise a summary jurisdiction over its attorneys vailed, it is not wonderful that no person could to compel them to act honestly towards their be found willing to make a voluntary charge clients, and to punish them by fine and imprisonagainst the petitioner or anyone else; and yet, ment for misconduct and contempts and, in gross the fact that he was engaged as one of the per- cases of misconduct, to strike their names from petrators was so notorious, and was brought to the roll. If regularly convicted of a felony,an atthe Judge's knowledge by information so reli- torney will be struck off the roll as of course, able and positive that he justly felt it his duty whatever the felony may be, because he is rento take official notice of it, and to give the pe- dered infamous. If convicted of a misdemeanor titioner an opportunity of repelling the charge. which imports fraud or dishonesty, the same This was done in such a manner as not to de- course will be taken. He will also be struck off prive him of any substantial right. The charge the roll for gross malpractice or dishonesty in his was specific, due notice of it was given, a rea- profession, or for conduct gravely affecting his sonable time was set for the hearing, and the professional character. In Archbold's Practice, petitioner was not required to criminate him- edition by Chitty, p. 148, it is said: "The court self by answering under oath. In the case of Er will, in general, interfere in this summary way, parte Steinman, 95 Pa., 220, where the county to strike an attorney off the roll or otherwise court on its own motion had cited the parties punish him, for gross misconduct, not only in before it for publishing a gross libel upon the cases where the misconduct has arisen in the court, and had struck their names from the roll, course of a suit, or other regular and ordinary though, on appeal, the order was reversed on business of an attorney, but where it has arisen other grounds, as to the mode of initiating the in any other matter so connected with his proproceedings, Chief Justice Sharswood, deliver- fessional character as to afford a fair presumping the opinion of the court, said: "We enter- tion that he was employed in or intrusted with tain no doubt that a court has jurisdiction with- it in consequence of that character." And it out any formal complaint or petition, upon its is laid down by Tidd that "Where an attorney own motion, to strike the name of an attorney has been fraudulently admitted, or convicted from the roll in a proper case, provided he has (after admission) of felony, or other offense had reasonable notice, and been afforded an which renders him unfit to be continued an atopportunity to be heard in his defense." In torney, or has knowingly suffered his name to the case of Randall v. Brigham, 7 Wall., 539 [74 be made use of by an unqualified person, or U. S., XIX., 293], which was an action for dam- acted as agent for such person, or has signed a ages brought by an attorney against a Judge fictitious name to a demurrer, as and for the for striking his name from the roll unjustly signature of a barrister, or otherwise grossly and without authority, not having before him misbehaved himself, the court will order him to in making the order to show cause any charge be struck off the roll." 1 Tidd, Pr., 89, ed. 9. of misconduct, except only a letter of a third Where an attorney was convicted of theft and person addressed to the grand jury; this court, the crime was condoned by burning in the hand, speaking by Mr. Justice Field, said: "But the he was, nevertheless, struck from the roll. "The claim of the plaintiff is not correct. The in- question is," said Lord Mansfield, "whether, formation imparted by the letter was sufficient after the conduct of this man, it is proper that to put in motion the authority of the court; and he should continue a member of a profession the notice to the plaintiff was sufficient to bring which should stand free from all suspicion. him before it to explain the transaction to which * *It is not by way of punishment; but the the letter referred. The informality of the no- court in such cases exercise their discretion, tice, or of the complaint by letter, did not touch whether a man whom they have formerly adthe question of jurisdiction. The plaintiff un- mitted, is a proper person to be continued on derstood from them the nature of the charge the roll or not.' against him; and it is not pretended that the investigation which followed was not conducted with entire fairness. He was afforded ample opportunity to explain the transaction and vindicate his conduct."

Looking at all the circumstances of the present case, we are not prepared to say that the course which was pursued rendered the proceedings void, as being coram non judice. And since they were not void, though not strictly regular, and since no substantial right of the petitioner was invaded, we do not think that the mere form of the proceeding requires us to interpose by the extraordinary remedy of mandamus.

The next question to be considered is, whether the facts charged against the petitioner constitute a legitimate ground for striking his name from the roll. Of this we think there can be no doubt. It is not contended but that, if properly proven, the facts charged are good cause for removal from the bar. A moment's consideration will be sufficient to demonstrate this.

It is laid down in all the books in which the subject is treated, that a court has power to ex

Now what is the offense with which the petitioner stands charged? It is not a mere crime against the law; it is much more than that. It is the prostration of all law and government; a defiance of the laws; a resort to the methods of vengeance of those who recognize no law, no society, no government. Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, to trample them under foot and to ignore the very bands of society, argues recreancy to his position and office and sets a pernicious example to the insubordinate and dangerous elements of the body politic. It manifests a want of fidelity to the system of lawful government which he has sworn to uphold and preserve. Whatever excuse may ever exist for the execution of lynch law in savage or sparsely settled districts, in order to oppose the ruffian elements which the ordinary administration of law is powerless to control, it certainly has no excuse in a community where the laws are duly and regularly administered.

But, besides the character of the act itself, as

It is necessary, however, that we should examine the authorities on the question raised by the petitioner, as to the power of the court to proceed against him without a previous conviction upon an indictment.

denoting a gross want of fealty to the law and expressly admitted his participation in the transrepudiation of legal government, the particular action. circumstances of place and time invest it with additional aggravations. The United States Court was in session; this enormity was perpetrated at its door; the victim was hanged on a tree, with audacious effrontery, in the virtual presence of the court! No respect for the dignity of the government as represented by its judicial department was even affected; the Judge of the court, in passing in and out of the place of justice, was insulted by the sight of the dangling corpse. What sentiments ought such a spectacle to arouse in the breast of any upright judge, when informed that one of the officers of his own court was a leader in the perpetration of such an outrage?

We have no hesitation as to the character of the act being sufficient to authorize the action of the court.

A question of greater difficulty is raised as to the legality of proceeding in a summary way on a charge of this nature. It is strenuously contended that when a crime is charged against an attorney for which he may be indicted, and the truth of the charge is denied or not admitted by him, it cannot be made the ground of an application to strike his name from the roll until he has been regularly convicted by a jury in a criminal proceeding; or, at least, that this is true, when the act charged was not committed in his professional character.

It has undoubtedly been held in some of the cases that where the offense is indictable, and the facts are not admitted, a regular conviction must be had before the court will exercise its summary jurisdiction to strike the name of the party off the roll. At first view this was supposed to be the purport of Lord Denman's judgment in the Anonymous case reported in 5 B. & Ad., 1088. That was a case of professional misconduct in pecuniary transactions. Lord Denman is reported as saying: "The facts stated amounted to an indictable offense. Is it not more satisfactory that the case should go to a trial? I have known applications of this kind, after conviction, upon charges involving professional misconduct; but we should be cautious of putting parties in a situation where, by answering, they might furnish a case against themselves, on an indictment to be afterwards preferred. On an application calling upon an attorney to answer the matters of an affidavit, it is not usual to grant the rule if an indictable offense is charged." And the Solicitor-General, Sir John Campbell, who made the application in that case, being requested to look at the authorities, afterwards stated that he could find no precedent for it. In that case, however, the rule applied for was one requiring the attorney to answer charges on oath. On a similar application in a subsequent case charging perjury and fraud, Anon., 3 Nev. & P., 389, Lord Denman said: "Would not an indictment for perjury lie upon these facts? We are not in the habit of interfering in such a case, unless there is something amounting to an admission on the part of the attorney, which would render the intervention of a jury unnecessary."

As, in urging this argument, much stress is laid upon the fact that the petitioner, by his answer, denied the charge contained in the rule | to show cause, it is proper to notice the manner in which this denial was made. The charge, as we have seen, was specific and particular: "That J. B. Wall, an attorney of this court, did, on the 6th day of this present month, engage in and with an unlawful, tumultuous and riotous gathering, he advising and encouraging thereto, take from the jail of Hillsborough County and hang by the neck until he was dead, one John, otherwise unknown, thereby show- In another Anonymous case in the Excheqing an utter disregard and contempt for the law uer, 2 Dowl. Pr., 110, where an attorney had and its provisions," etc. The denial of this been sued in an action at law for an aggravated charge was a mere negative pregnant, amounting libel, and a verdict had been rendered against only to a denial of the attending circumstances him with only one shilling damages; on an apand legal consequences ascribed to the act. The plication being then made to strike him off the respondent denied "counseling, advising, en- roll, Lord Lyndhurst said: "Have you any incouraging or assisting an unlawful, tumultuous stance of such an application on a verdict for and riotous gathering or mob in taking one John the same criminal act, but for which no crimifrom the jail of Hillsborough County and caus-nal proceedings have been taken?" and intiing his death by hanging, in contempt and defiance of the law." He was not required to answer under oath; and did not do so. Yet, free from this restriction, he did not come out fully and fairly and deny that he was engaged in the transaction at all; but only that he did not engage in it with the attendant circumstances and legal consequences set out in the charge. Even the name of the victim is made a material part of the traverse.

Upon such a special plea as this, we think the court was justified in regarding the denial as unsatisfactory. It was really equivalent to an admission of the substantial matter of the charge. Nevertheless, the marshal of the court was called as a witness and clearly proved the truth of the charge, and no evidence was offered in rebuttal. The case, as it stood before the court, was as clear of all doubt as if the petitioner had

mated that if there was any such case, the rule would be granted, but added: "Here there was conflicting evidence at the trial, and it is doubtful whether the publication was brought home to the defendant; and the jury seem to have so considered it;" and the rule was refused.

But this matter was carefully reviewed by the Court of Exchequer in the subsequent case of Stephens v. Hill, 10 Mees. & W., 28, where a motion was made against an attorney who had conspired with others to induce a witness for the opposite party to absent himself from a trial, giving him money, etc. It was objected that the application to strike from the roll could not be heard on these charges without a conviction, inasmuch as a conspiracy is an indictable offense. Lord Abinger took a distinction between a rule to show cause why an attorney should not be struck off the roll, and a rule

Some expressions in the cases cited, including the remarks made by Lord Abinger in Stephens v. Hill, seem to imply that the summary jurisdiction will not be exercised where the charges made against an attorney affect only his general character as such, and do not amount to malpractice in a particular cause. But subsequent decisions are to the effect that it is properly extended to cases affecting his general char

calling on him to answer the matters of an affi- | is not a technical conviction which is required, davit with a view to strike him off the roll. but a fair effort on the part of the prosecutor to The latter course he conceded would be im- bring the offender to justice; coupled also with proper, if the offense was indictable, because it the fact, that a jury is the most suitable tribuwould compel the attorney to criminate him- nal for passing upon a question of fact dependself; but not so the former, for he might clear ing upon conflicting evidence. himself without answering under oath; and that this was all that Lord Denman meant in the case before him. Lord Abinger said that as long as he had known Westminster Hall, he had never heard of such a rule as that an attorney might not be struck off the roll for misconduct in a cause merely because the offense imputed to him was of such a nature that he might have been indicted for it; but he said that in the case of applications calling upon an attor-acter also. Thus, in Re Blake, 3 El. & El., 34, ney to answer the matters of an affidavit, he had known Lord Kenyon and Lord Ellenborough frequently say, you cannot have a rule for this purpose, because the misconduct you impute to the man is indictable; but you may have one to strike him off the roll. After noticing and explaining the language attributed to Lord Denman, as before stated, Lord Abinger adds: "If, indeed, a case should occur where an attorney has been guilty of some professional misconduct for which the court by its summary jurisdiction might compel him to do justice, and at the same time has been guilty of something indictable in itself, but not arising out of the cause, the court will not inquire into that with a view of striking him from the roll, but would leave the party aggrieved to his remedy by a criminal prosecution.'

This expression, about leaving the party aggrieved to his remedy by a criminal prosecution, is frequently found in the English cases, and has reference to the practice in that country of regarding the party injured by the perpetration of a crime as the proper person to prosecute the offender; and one, indeed, upon whom a duty, in some sort, rested to institute such prosecution. The court would, therefore, hesitate to take any summary action against the offender which might remove the inducements the injured party would otherwise have for proceeding criminally against him, and thus interfere with the course of justice. In this country, the prosecution of criminal offenses is generally committed to the charge of a public officer, and sufficient emolument is attached to the duty of prosecution to secure its faithful performance. The same reason, therefore, does not exist here, as in England, for leaving it to the injured party to prosecute for the criminal offense. So far as the offender himself is concerned, it is true, the reason is equally strong against compelling him to answer under oath charges preferred against him, and in favor of giving him a trial by jury in all cases of doubt or of conflicting evidence. That a reluctance to interfere with the incentive to prosecute criminally in these cases operated strongly upon the judicial mind in England, is manifest from the fact, that after a prosecution had been made, and the duty of the injured party had been performed, the courts never hesitated to strike the accused from the roll, if found guilty by a jury, even though judgment against him had been arrested, or reversed, or the offense had been pardoned or condoned; thus showing, that it *Rex v. Southerton, & East, 127; In re King, 8 Q. B., 129; In re Garbett, 18 C. B., 402.

an attorney was struck from the roll for having improperly collected the money due on a mortgage which he had pledged as collateral security for a loan, and which he borrowed from the pledgee on some false pretense. On a rule to show cause and reference to the master, the facts were found to be truly charged; and although he was not acting as attorney in the matter, the court suspended his certificate for two years, on the general ground, as stated by Lord Ch. Just. Cockburn, that where an attorney is shown to have been guilty of gross fraud, although not such as to render him liable to an indictment, nor committed by him while the relation of attorney and client was subsisting between him and the person defrauded, or in his character as an attorney, the court will not allow suitors to be exposed to gross fraud and dishonesty at the hands of one of its officers. And in a subsequent case, In Re Hill, L. R., 3 Q. B., 543, where an attorney acting, not as such, but as clerk to a firm of attorneys, appropriated to his own use money which came to his hands on the sale of an estate; on a motion to strike his name from the roll, it was objected that, as his offense was indictable, a conviction was necessary before this proceeding could be had. Lord Chief Justice Cockburn said: "No case has, so far as I am aware, come before the court under the precise circumstances under which this case presents itself, namely: of an act of delinquency committed by an attorney's clerk, who at the same time is an attorney, though at that time not acting as such; but still I think, on every principle of justice, we ought not the less to entertain the application. *** If the delinquent had been proceeded against criminally upon the facts admitted by him, it is plain that he would have been convicted of embezzlement, and upon that conviction being brought before us, we should have been bound to act. If there had been a conflict of evidence upon the affidavits, that might be a very sufficient reason why the court should not interfere until the conviction had taken place; but here we have the person against whom the application is made admitting the facts." Mr. Justice Blackburn, in the same case, said: "I think when we are called upon, in the exercise of our equitable jurisdiction, to order an attorney to perform a contract to pay money, or to fulfill an undertaking, that we have jurisdiction only if the undertaking or the contract is made in his character of attorney, or so connected with his character of attorney as to bring it within the power of the well as an officer. But where there is a matter court to require that their officer shall behave

which would subject the person in question to a criminal proceeding, in my opinion, a different principle must be applied. We are to see that the officers of the court are proper persons to be trusted by the court with regard to the interests of suitors and we are to look to the character and position of the persons, and judge of the acts committed by them, upon the same principle as if we were considering whether or not a person is fit to become an attorney. *** It should always be considered whether the particular wrong done is connected with the character of an attorney. The offense morally may not be greater; but still, if done in the character of an attorney, it is more dangerous to suitors, and should be more severely marked. I agree that where it is denied that a criminal offense has been committed, the court ought not to decide on affidavits a question which ought to be tried by a jury."

This case is important, as showing the latest consideration of the question by the English courts, and by the most eminent judges of those

courts.

The rule to be deduced from all the English authorities seems to be this: that an attorney will be struck off the roll if convicted of felony or if convicted of a misdemeanor involving want of integrity, even though the judgment be arrested or reversed for error; and also, without a previous conviction, if he is guilty of gross misconduct in his profession or of acts which, though not done in his professional capacity, gravely affect his character as an attorney; but in the latter case, if the acts charged are indictable and are fairly denied, the court will not proceed against him until he has been convicted by a jury; and will in no case compel him to answer under oath to a charge for which he may be indicted.

others, such previous conviction being deemed unnecessary.

The former view is taken, or seems to be assumed, in the cases we will now cite.

In an Anonymous case, reported in 2 Halst. (N. J.), 162 (1824), where the charge was larceny, the court refused the rule to strike off the roll, because the offense was indictable, and there had been no conviction.

In State v. Foreman, 3 Mo., 412, the court refused to disbar an attorney for passing counterfeit money, knowing it to be counterfeit, and escaping from prison before being convicted therefor; the ground of refusal being that it was not a case within the Missouri Statute, which required a conviction. Of course, being governed by the statute, this case is not in point. In Fisher's Case, 6 Leigh., 619 (1835), Fisher commented to a jury in a manner which the Judge deemed grossly unprofessional and disrespectful to the court; and on the next day, after reciting the circumstances, made an order suspending his license for twelve months. This order was reversed by the Court of Appeals, on the ground that the party proceeded against must be regularly prosecuted by indictment or information, and found guilty by a jury. But as this decision was based upon a statute of Virginia, prescribing the course of proceeding, it is no authority on the point in question.

In State v. Chapman, 11 Ohio, 430, an attorney had been charged with theft and brought an action of slander therefor; the defendant pleaded the truth in justification, and obtained a verdict establishing his defense. Upon this, a rule was granted against the attorney to show cause why he should not be struck off the roll. He proved explanatory circumstances, and the court held that the verdict in the civil action was not sufficient to establish the charge of larceny, and discharged the rule.

In Beene v. State, 22 Ark., 149, where the defendant had made an unwarrantable and atrocious personal attack upon the Circuit Judge for his action as judge; on application of the county bar to strike his name from the roll, the rule was granted; but the Supreme Court of Arkansas reversed the order on the ground that the proceedings were irregular, and not in pursuance of the statute, which required regular charges to be exhibited, verified by affidavit, and a time fixed for hearing. The court also held that where the offense is indictable, there must be a regular conviction before the party can be struck off the roll; if not indictable, he was entitled to be tried by a jury. This case seems to have been decided upon the statutes of Arkansas.

This rule has, in the main, been adopted by the courts of this country; though special proceedings are provided for by statute in some of the States, requiring a formal information under oath to be filed, with regular proceedings and a trial by jury. The cases are quite numerous in which attorneys, for malpractice or other misconduct in their official character, and for other acts which showed them to be unfit persons to practice as attorneys, have been struck from the roll upon a summary proceeding without any previous conviction of a criminal charge. See, amongst others, the case of Niven, 1 Wheel. Cr. Cas., 337, note; case of Burr, 1 Id., 503; S. C., 2 Cranch, C. C., 379; In Re Peterson, 3 Paige, 510; Ex parte Brown, 1 How. (Miss.), 303; Ex parte Mills, 1 Mich., 392; Ex parte Secombe, 19 How., 9 [60 U. S., XV., 565]; In Re Percy, 36 N. Y., 651; Dickens Case, 67 Pa. St., 169; In In Ex parte Steinman, 95 Pa. St., 229, the reRe Hirst, 9 Phila. Rep., 216; Baker v. Common-spondents published a libel against the Judges wealth, 10 Bush. (Ky.), 592; Penobscot Bar v. of the Quarter Sessions of Lancaster County, Kimball, 64 Me. 140; Matter of Wool, 36 Mich., Pennsylvania, accusing them of political mo299; People v. Goodrich, 79 II., 148; Delano's tives in allowing a defendant to be acquitted. Case, 58 N. H., 5; Ex parte Walls, 64 Ind.,461; On being cited to show cause why they should Matter of Eldridge, 82 N. Y., 161. not be struck off the roll, they took the ground, amongst other things, that they were charged with an indictable offense, and were entitled to a trial by jury. The court having made the rule absolute, they appealed and the Supreme Court of Pennsylvania reversed the order. Chief Justice Sharswood, in delivering the opinion of the court, said: "No question can be made of the

But where the acts charged against an attorney are not done in his official character and are indictable and not confessed, there has been a diversity of practice on the subject; in some cases it being laid down that there must be a regular indictment and conviction before the court will proceed to strike him from the roll; in