State v. Whiteside

• Decision Date: 21 March 1961
• Citation: 148 Conn. 208,169 A.2d 260
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Loring WHITESIDE. Supreme Court of Errors of Connecticut

Page 260

169 A.2d 260

148 Conn. 208

STATE of Connecticut v. Loring WHITESIDE.

Supreme Court of Errors of Connecticut.

March 21, 1961.

B. Fred Damiani, New Haven, for appellant (defendant).

George R. Tiernan, Prosecuting Attorney, New Haven, for appellee (state).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

MELLITZ, Associate Justice.

The defendant was charged, in an information containing twenty-three counts, with having published a series of libels in violation of what is now General Statutes § 53-174. ¹ Upon the trial to the jury, he was found guilty on four counts, and he has taken this appeal. His principal claims are that the information was fatally defective in that it lacked an allegation of malice; that the state failed to introduce evidence of actual malice in the publication of the alleged libels; that the state failed to prove that a breach of the peace resulted from the publication of the libels; and that a finding of guilt on count 12 could not be sustained when the defendant was found not guilty on other counts in which he was charged with publishing the same or similar statements. Error is assigned also in the charge, in the finding, and in rulings on evidence.

The alleged libels were published in a small weekly paper, 'the grapevine press,' printed, published and distributed by the defendant. Each of the twenty-three issues from May 21, 1958, through October 22, 1958, was made the basis of a separate count in the information. In each count, the defendant was accused of publishing, in a designated issue of the paper, a libel concerning certain named persons, in violation of what is now § 53-174. The information was in the short form authorized by Practice Book § 344. This section provides that an offense may be charged by using the name given to it by the common law or by a statute, or by stating so much of the definition of the offense as is sufficient to give the court and the accused notice of what offense is intended to be charged. Practice Book § 350 provides that an indictment or information need not allege that the offense was committed or the act done 'maliciously,' unless such characterization is necessary to charge the offense under § 344. The practice authorized by § 344 has been held to be constitutional. State v. Davis, 141 Conn. 319, 321, 106 A.2d 159. The claim of the defendant is that the alleged libels were published on occasions of privilege and therefore that an allegation of malice was essential to charge the offense under § 344; and further, that proof that the publications were made maliciously was required to sustain a conviction.

At common law, malice constitutes the essence of the offense of criminal libel and, in a prosecution, is a necessary allegation and an element in the proof. The malice referred to is merely the malice which the law implies from the publication of defamatory matter and means no more than the intent to publish it. The malice is presumed from the publication, and the presumption stands as proof. State v. Pape, 90 Conn. 98, 106, 96 A. 313. Under the statute upon which the prosecution here is based, the offense consists of the publication of the defamatory matter. That, itself, constitutes the crime, and prima facie proof of malice is not required. Id. The situation changes, however, when it is shown that the publication was made in circumstances which the law recognizes as an occasion of privilege. Flanagan v. McLane, 87 Conn. 220, 222, 87 A. 727, 88 A. 96; Atwater v. Morning News Co., 67 Conn. 504, 516, 34 A. 865. Such an occasion rebuts the implication of malice which the law draws from the publication of false and defamatory matter, and casts upon the state the burden of proving that the occasion had been abused and that the defendant was in fact actuated by malice toward the libelee. State v. Pape, supra, 90 Conn. 107, 96 A. 316. The state need not set forth the circumstances surrounding the publication, showing whether the occasion was one of privilege. That burden is on the accused. Id., 90 Conn. 106, 96 A. 316.

The information here charged the defendant with publishing libels concerning certain named persons, but those persons were not otherwise described or identified. It is the defendant's contention that they were, in fact, attorneys at law and public officers and that the occasions of the publications were privileged. The facts showing the occasions to be privileged did not, as in the Pape case, appear from the contents of the information. It was therefore not essential that the information contain an allegation that the publications were maliciously made, Practice Book § 350. The burden was on the defendant to prove, by a fair preponderance of the evidence, his claim of privilege. State v. Gardner, 112 Conn. 121, 124, 151 A. 349; State v. Pape, supra, 90 Conn. 106, 96 A. 316. If he sustained that burden, it became incumbent upon the state to prove that the privilege was abused and that in publishing the defamatory matter the defendant was, in fact, actuated by malice. Id., 90 Conn. 107, 96 A. 316. The court so instructed the jury in its charge. The absence of an allegation of malice did not render the information defective.

The contention that the state introduced no evidence of malice and that there was no evidence before the jury from which malice could be found is equally without merit. Malice in fact is sufficiently shown by proof that the publications were made with improper and unjustifiable motives. Corsello v. Emerson Bros., Inc., 106 Conn. 127, 132, 137 A. 390; Hassett v. Carroll, 85 Conn. 23, 37, 81 A. 1013; Wynne v. Parsons, 57 Conn. 73, 80, 17 A. 362; Hotchkiss v. Porter, 30 Conn. 414, 421; Moore v. Stevenson, 27 Conn. 14, 28. In its proof of malice, the state is not confined to evidence extrinsic to the contents of the publication itself. From the alleged libel, the jury may determine whether, on the face of it, there is evidence of malice. Flanagan v. McLane, supra, 87 Conn. 222, 87 A. 728; State v. Pape, supra, 90 Conn. 106, 96 A. 316. Here, the alleged libelous statements charged the named persons with a wide variety of unlawful and criminal acts, including fraud, perjury, blackmail, intimidation, concealment of crime, and control of organized gambling and prostitution; and further, that they would not hesitate to murder to prevent disclosure of their activities. The publications clearly disclosed such scurrilous, abusive and offensive matter that a jury plainly would be justified in concluding that the publications were made from improper and unjustifiable motives, in the absence of evidence of their truth or other evidence of good faith. Evidence of malice could be found also in the defendant's deliberate repetition of the statements in the various issues of his publication. Ely v. Mason, 97 Conn. 38, 45, 115 A. 479; State v. Riggs, 39 Conn. 498, 503. There was ample evidence before the jury to support a finding of malice.

Another contention of the defendant is that to support a conviction under the statute there must be proof of a breach of the peace. It is true that the offense here charged is spelled out in the same statute as the crime of breach of the peace, but it is a separate and distinct offense. The publishing of defamatory matter was made a statutory offense by chapter 86 of the Public Acts of 1865; Rev.1866, p. 264, § 123; and the offense has been incorporated in the breach of the peace statute since 1875. Rev.1875, p. 509, § 10; State v. Pape, supra, 90 Conn. 101, 96 A. 314. At common law, the basis for a criminal prosecution for the publication of a libel is its tendency to create a breach of the peace; it is immaterial that no one was incited to commit any act by reason of the libel. State v. Avery, 7 Conn. 266, 269. The gravamen of the offense under the statute is that the publication affects injuriously the peace and good order of society; State v. Gardner, supra; and the offense is complete when the accused has done the thing set forth in the statute, irrespective of whether any other act resulted from it. The court correctly ruled that it was not incumbent upon the state to prove that a disturbance of the public peace actually resulted from the publications.

The defendant contends that his conviction on count 12 is invalid and should be set aside because he was found not guilty on a number of counts in which he was charged with publishing, on other dates, defamatory matter similar to that charged in count 12 and concerning the same persons. Each count in the information charged a separate and distinct offense and was complete in itself. The only question in whether the evidence was sufficient to support a conviction on count 12, irrespective of the verdict on the other counts. Except as to the claim, already considered, that the state presented no evidence of malice, the defendant has not questioned the sufficiency of the evidence to warrant a conviction on count 12. There was no basis for the court to disturb the verdict on that count.

The defendant's objection to the inclusion of certain paragraphs in the finding involves a misconception of the nature of the finding in a jury trial. It is merely a narrative of the facts claimed to have been proved by each side, made for the purpose of fairly presenting any claimed errors in the charge or rulings of the court. Szela v. Johnson Motor Lines, Inc., 145 Conn. 714, 719, ...