State v. Cox

• Decision Date: 12 November 1963
• Docket Number: No. 46618,46618
• Citation: 158 So.2d 172,245 La. 303
• Parties: STATE of Louisiana v. B. Elton COX.
• Court: Louisiana Supreme Court

Page 172

158 So.2d 172

245 La. 303

STATE of Louisiana v. B. Elton COX.

No. 46618.

Supreme Court of Louisiana.

Nov. 12, 1963.

Rehearing Denied Dec. 20, 1963.

Collins, Douglas & Elie, New Orleans, Murphy W. Bell, Baton Rouge, Carl Rachlin, New York City, F. B. McKissick, Durham, N.C., for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Sargent Pitcher, Jr., Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for appellee.

FOURNET, Chief Justice.

This case was previously before us on an appeal taken by the defendant, B. Elton Cox, but the bills reserved during his trial were not then considered inasmuch as the only question presented for determination was the legality of the sentence imposed. Finding he had been sentenced within twenty-four hours after his conviction, contrary to the provisions of R.S. 15:521, the sentence was annulled and set aside, the defendant ordered released on bail until such time as legal sentence was imposed, and, in the meanwhile, he was afforded the opportunity to take any procedural steps to which he was entitled during the delay provided by that statute. See, State v. Cox, 243 La. 917, 148 So.2d 600. ¹

This appeal is from the defendant's conviction of violating Section 14:401 of the Revised Statutes of 1950 ² and his sentence thereunder to 'pay a fine of $5,000 and to be confined in the parish jail for one year, or in default of the payment of said fine to be imprisoned one year additional, this sentence to run consecutively with' the sentences that day imposed under two other convictions that were affirmed by this court in a decision handed down June 28, 1963. State v. Cox, La., 156 So.2d 448. The defendant in this case, as in the companion cases, is relying for the reversal of his conviction and sentence on five Bills of Exceptions reserved and perfected during the trial, although in the record they are not numbered and considered in the order in which they were reserved. ³

These three charges, as well as a charge of criminal conspiracy under R.S. 14:26 of which this defendant was exonerated by the trial judge, grew out of the same incident and were, by agreement, consolidated for trial, the evidence adduced at that time being made applicable to all. The basic attack on the legality of the conviction is, in essence, identical in all three cases, the only material difference being the facts and contentions specifically applicable to the charges under the statute involved in each.

In considering these companion cases we found it difficult, as we do here, to answer the arguments of defense counsel without a great deal of duplication and repetition, particularly since the last two bills include the contentions raised in the first three with the usual additional assertion there is no evidence to support the conviction; hence, in order to avoid such repetition and duplication, we adopt the four basic causes assigned by the accused for the reversal of his conviction and sentence as succinctly stated in the opinion in State v. Cox, La., 156 So.2d 448:

'First, it is asserted that the specific laws under which he was charged, tried and convicted * * * are unconstitutional in their application, for the conviction thereunder infringes upon the defendant's right of free speech protected by the First Amendment of the United States Constitution which the States cannot deny its citizens because of the due process and equal protection clauses of the Fourteenth Amendment of the Constitution of the United States.

'Second, the claim is made that these laws and the bills of information are too vague and general and hence violate the due process and equal protection clauses of the Fourteenth Amendment.

'Third, it is contended that Cox's trial and conviction were violative of the Fourteenth Amendment for there was no evidence tending to prove the crime charged.

'Fourth, it is contended that the segregated conditions in the courtroom during the trial denied Cox a fair trial in violation of the Sixth and Fourteenth Amendments.'

The argument by defense counsel in the case at bar is also almost identical with that presented in the companion cases, both orally and in brief, and, like the Bills of Exceptions, are not only lengthy and repetitious, but, when properly analyzed, as we found in these cases (156 So.2d 448), basically unsound in that they are without foundation in fact or in law.

Defendant's first contention is that R.S. 14:401--prohibiting any form of demonstration in or near a building housing a court of the State of Louisiana, or in or near a building or residence occupied or used by a judge, juror, witness, or court officer, with the intent of interfering with the administration of justice, or with the intent of influencing such judge, juror, witness, or court officer in the proper discharge of his duties, under which statute the defendant was convicted--is unconstitutional in its application in this case.

While defense counsel concede that interfering with the administration of justice is illegal, as is also the influencing of a judge, juror, witness, or court officer in the proper discharge of his duties, it is contended that if the statute is construed to convict him for demonstrating with his followers in front of the East Baton Rouge Parish courthouse, it is unconstitutional in that it deprives him of his right to peacefully assemble and speak freely, as guaranteed by the First Amendment to the Constitution of the United States; further, that in denying him these rights, it also violates the equal protection and due process clauses of the Fourteenth Amendment to the federal constitution.

In considering similar contentions urged in the two companion cases, we recognized, as did the court below, that under decisions of the Supreme Court of the United States the freedoms guaranteed individuals under the First Amendment are protected by the Fourteenth Amendment from invasion by the states, citing a number of authorities whereby this country's highest court established this rule in the jurisprudence. But we also pointed out that the United States Supreme Court has recognized that the right of freedom of speech and of the press is not absolute, and held that a state may, by general and non-discriminatory legislation, regulate the exercise of that freedom under its police power. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213.

Unquestionably these rights, freedoms, or privileges of peaceful assembly and of expression and discussion--however they may be considered--as well as the impartial administration of justice that is guaranteed under the Sixth Amendment to the Constitution of the United States, are all vital and important to the concepts on which this nation was founded. To paraphrease Mr. Justice Frankfurter in his concurring opinion in Pennekamp v. Florida, the claims with which we are faced are not those of right and wrong, but of two rights, each highly important to the well-being of society, the core of the problem being to arrive at a proper balance between basic conditions of our constitutional republic--freedom of utterance and peaceful assembly on the one hand, and the proper and impartial administration of justice on the other, and since the latter is one of the chief tests of the true concepts of our constitutional government, it should not be made unduly difficult by irresponsible actions.

In his excellent dissertation on the subject matter, which we adopt as based on sound reasoning and unassailable logic, Justice Frankfurter continues: 'Without a free press there can be no free society. Freedom of the press, however, is not an end in itself but a means to the end of a free society. The scope and nature of the constitutional protection of freedom of speech must be viewed in that light and in that light applied. The independence of the judiciary is no less a means to the end of a free society, and the proper functioning of an independent judiciary puts the freedom of the press in its proper perspective. For The judiciary cannot function properly if what the press does is reasonably calculated to disturb the judicial judgment in its duty and capacity to act solely on the basis of what is before the court. A judiciary is not independent unless courts of justice are enabled to administer law By absence of pressure from without, whether exerted through the blandishments of reward Or the menace of disfavor. * * * A free press is not preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other; both are indispensable to a free society. The freedom of the press in itself presupposes an independent judiciary through which that freedom (whether of utterance, expression, speech, or peaceful assembly) may, if necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press.' Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295. (The emphasis and language within brackets has been supplied.)

We think it proper to mention here and now that R.S. 14:401 was not, as contended by defense counsel and urged in two of the bills reserved (to the denial of a motion for a new trial and one in arrest of judgment), adopted by the Louisiana legislature 'for the specific purpose and intent to implement and further the state's policy of enforced segregation of races.' Instead, it was almost a duplicate of an act introduced in Congress in 1949 (Senate Bill No. 1681 and House Bill No. 3766) condemning picketing, parading, and demonstrations in the environs of federal courts, and passed in 1950 with the full support and approval of the American Bar Association for the reason that such conduct in the immediate vicinity of a building or residence housing a court of court officer was anathema to our concepts of justice according to law. The only difference in the federal statute (18 USCA 1507) and our Act No. 177 of 195...