360 A.2d 909 (Conn.Cir.A.D. 1976), State v. Anonymous (1976-8)

Citation:360 A.2d 909, 6 Conn.Cir.Ct. 751
Opinion Judge:JACOBS, Judge.
Party Name:STATE of Connecticut v. ANONYMOUS (1976-8) [*].
Judge Panel:In this opinion KINMONTH and LACEY, JJ., concurred. JACOBS,
Court:Circuit Court of Connecticut

Page 909

360 A.2d 909 (Conn.Cir.A.D. 1976)

6 Conn.Cir.Ct. 751

STATE of Connecticut

v.

ANONYMOUS (1976-8) [*].

Circuit Court of Connecticut, Appellate Division.

1976

Page 910

JACOBS, Judge.

The defendant was convicted in the Circuit Court upon information of violating [6 Conn.Cir.Ct. 752] § 53-174 1 of the General Statutes. The finding, which has not been attacked, discloses these facts: The defendant was the editor of a student newspaper published on a weekly basis at a local university. Prior to a presidential election, the newspaper contained considerable material concerning the forthcoming election. A particular issue of the publication 'contained a drawing depicting a semi-clenched fist with the middle finger in an up-raised position and the tip of said up-raised finger pofrtraying the end of a penis. Underneath that drawing was the name of a presidential candidate. The newspaper was distributed and circulated within the city in which the university was located. The court concluded that the drawing was offensive, abusive, and indecent; that it was directed at the named presidential candidate; that the stae was not required to allege that the defendant acted with malice; and that malice was implied from the fact that the drawing was published.

The information was in the short form and complied with the requirements of Practice Book § 493(a). See State v. Davis, 141 Conn. 319, 320, 106 A.2d 159. '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.' State v. Whiteside, 148 Conn. 208, 210, 169 A.2d 260, 261, [6 Conn.Cir.Ct. 753] cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33. Had there been any question in the mind of the defendant as to what offense he was being called on to defend against, he could have filed a motion for a bill of particulars. Practice Book § 495. This he did not do.

The defendant assigned as error the trial court's ruling that malice may be implied from the act of publication, that the state was not required to allege that the defendant acted with malice, and that the drawing in question was offensive, abusive, and indecent. Further, the defendant challenged the statute, both on its face and as applied to him, as violating the liberty of speech and of the press guaranteed as against the states by the first amendment and the due process clause of the fourteenth amendment. With the view we take

Page 911

of this case, it becomes necessary to examine only the defendant's contention that the trial court erred in ruling that malice may be implied from the act of publication. Hence we decline to reach the very significant constitutional questions raised.

I

Hardly any branch of the English law has had a longer or more interesting history than the law of criminal libel the development of which has reflected the changes in public attitude toward the value and necessity of free speech. See 2 Stephen, 'A History of the Criminal Law of England' (1883 Ed.), p. 299. The theory of criminal libel ever since De Libellis Famosis, 5 Coke Rep. 125(a), 77 Eng.Rep. 250 (1609), has been that the government has the right to punish certain utterances because they inevitably lead to breaches of the peace. 'Any...

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