Honolulu star-bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1912-2010, 1914-04-27
WOULD DISMISS
TH|ELENCHARGES
AGAINST M'CARN
CONTINUED from page one)


tally as Mr. NcrHrn has stated in
his answer Thor" aIprrrs also t.
hc no question lUt that Mr.. Thitl"n.
G. Saturday. tn" 18Th Of March. in.
du""d DR. Herbert t. accompany him
to MIR NcCarn's office and that the
object Of such visit was to notify M.
NcC&rn f the mental condition OF
Mrs Thielcn and Of the untruth Of
G rtain statements &C ntained in the
libel for divorce. Of which statements
Mr. ThitIen had previous knowledge.
There is a sharp disagreement IS to
what transpired at this interview.
Mr. NCCarn states in GUhStanC" that
he does net remember that DR.. Her
bert said anything beyond the state
ment that Mrs ThieIen was mon com
pos mentis." and he further states
that if DR. Herbert had stated that
she was "absOlutely irresponsible for
her statements he should have known
it to be untrue, for the reasons set
forth on pages Q and 10 of his answer,
to which the court is referred. On the
ether hand, both Mr.. Thielen and Or.
Herbert are absolutely positive that
Dr. Herbert informed Mr. McCarn not
only that Mrs. Thielen was mon COM
pos mentis" but that she was also not
RESPONSIBLE for the statements she
had made.
Both Mr. Thielen and DR. Herbert
are also emphatic in their statements
that Mr. McCarn agreed or promised
rot to take further steps without con-
sulting one or both of them. This
\
pages Is to 10 of his reply. This Of
flee does not feel that it can at this
time state which is correct.
There appears to be no question
but that Mr.. McCarn agreed with Mr..
Thielen that The. allegation that Mr..
Thielen had inflicted his wife with a
IVenereal disease was one Of the main
allegations of the libel, and it further
appears that Dr. Herbert informed Mr..
McCarn that Mrs. Thielen was not suf-
| fering from any venereal disease and
explained to Mr. McCarn the cause OF
such trouble as she may have had
and there is no DISPUTE as to the fact
that Mr.. Thielen offered to submit
| himself to such examination as Mr..
McCarn might desire,
This office has been informed by
DR.. Herbert that he has examined both
! Mrs and Mr. Thielen and that the
allegations of the bill so far as con-
Germs this matter are absolutely false,
and for the purposes of this report the
statement of DR.. Herbert is regarded
as true. The interview between Mr..
McCarn, DR. Herbert and MIR. Thielen
was on Saturday the 14th, On Mon
day the 10Th, the libel was signed and
sworn to by Mrs. Thielen at the office
of the clerk of the circuit court. Mr..
Thompson. Mr.. McCarn's assistant
filed it in the court forthwith and at |
once withdrew it, On the 18th the
libel was returned by Mrs. Thielen
for service.
The question therefore arises as to
whether Mr.. McCarn was justified in
filing this libel after the interview
with Dr. Herbert and Mr.. Thielen,
without making further investigation
tC. determine the mental condition of
his client and the truth or falsity OF
the charges contained in the libel
Attorneys every day bring divorce
proceedings which contain charges
equally strong against the libellee.
In this case, however, the libellant
was, in the opinion of this office, &C
tually insane at the time the proceed
ings were brought and Mr.. McCarn
had been so advised by a reputable |
physician, to whose statement he at
that time gave little weight for the
reasons stated on pages nine and ten
Of his answer which is hereto at |
tached and had further been advised |
that the charges which intimately at- |
feCted the character Of the libelleP
were untrue.
The charges in the libel were sup |
ported by affidavit made by Mrs. |
Thielen at the suggestion Of Mr. Nc |
earn. "knOwingly making untrue af- |
fidavits or having them made for pur-
poses of taking advantage of the court |
or private parties are grounds jusu- |
flying disbarment. See Am. & Eng. !
Enc. Law. 311. and cases collected |
there But where it is not clear that
the attorney intended to state false |
hood. there is no ground for disbar- |
ment" Matter Of HOughtOn. g. Cal |
81.
in my opinion Mr.. Nee arm did not |
act maiCiOusly or in conscious bad /
faith. though there is room for a diff |
ference Of opinion as to Whethe" he |
exercised the care that a prudent law !
yer should have exercised under the
circumstances
"The power to suspend or disbar |
lawyer should he exercised with great |
caution and only for most weighty !
reasons eve co.,