37 S.W. 938 (Mo. 1896), State v. Van Wye

Citation37 S.W. 938, 136 Mo. 227
Opinion JudgeGantt, P. J.
Party NameThe State v. Van Wye, Appellant
AttorneyHarry L. Strohm for appellant. R. F. Walker, attorney general, Morton Jourdan, assistant attorney general, and A. B. Duncan, prosecuting attorney, for the state.
Judge PanelGantt, P. J. Sherwood and Burgess, JJ., concur. Sherwood and Burgess, JJ., concur.
Case DateDecember 01, 1896
CourtSupreme Court of Missouri

Page 938

37 S.W. 938 (Mo. 1896)

136 Mo. 227

The State

v.

Van Wye, Appellant

Supreme Court of Missouri, Second Division

December 1, 1896

Appeal from Buchanan Criminal Court. -- Hon. A. M. Woodson, Judge.

Affirmed.

Harry L. Strohm for appellant.

(1) The court erred in overruling the objections to the competency of the juror Campbell. The voir dire examination clearly shows that he was under the influence of impressions which would close his mind to evidence. State v. Cunningham, 100 Mo. 382; State v. Brooks, 92 Mo. 542; McCarthy v. Railroad, 92 Mo. 536. (2) The indictment should set out the matter alleged to constitute the offense, or at least give facts sufficient to identify the newspaper, such as the place where published, the date, the number of the volume, and the edition. The law of this state has uniformly held that these matters must be set out in the indictment, in order to comply with the constitutional requirement, section 22 of the bill of rights. State v. Hayward, 83 Mo. 289; U. S. v. Harmon, 34 F. 872; In re Swarts, 47 Kan. 157; State v. Krueger, 35 S.W. 604. (3) A punishment may be denominated cruel and unusual when greatly in excess of that demanded as a preventive of the offense prohibited and when exceeding that usually prescribed for like offenses. Cooley's Const. Lim., chap. 10; State v. Williams, 77 Mo. 310. (4) The liberty of the press, as guaranteed by the constitution, means the licentiousness of the press, but it does give the right freely to publish whatever the citizen may please, and to be protected against any responsibility for so doing, except in so far as such publication, from its blasphemy, obscenity, or malicious falsehood, may be a public offense. Cooley, Const. Lim., chap. 12; Odgers on Libel, 10; 4 Blackstone, 152; Newell on Defamation, 962. (5) Liberty of the press consists of the right to publish, with immunity, the truth with good motives and for justifiable ends, whether it respects government or individuals. Gazette v. Timberlake, 10 Ohio St. 548; People v. Crosswell, 3 Johns. Cas. 393; De Lolme, Const. 254; 2 Kent, Com. [12 Ed.] 17. (6) So well is this principle recognized in this state that no writ will issue to enjoin the publication of a libel. Life Ass'n v. Boogher, 3 Mo.App. 179. (7) Both English and American commentators are agreed that the liberty of the press consists in this, that neither courts of justice, nor any other judges whatever, are authorized to take notice of writings intended for the press, and any restriction to the free expression of opinion is violative of that guaranteed liberty. De Lolme, Const., 254; Cooley, Con. Lim., 420; 2 Kent [12 Ed.], 17; Rawle on Const., ch. 10. (8) Liberty of the press consists in printing, without any previous license, whatsoever one chooses. Root v. King, 1 Cow. 628; Sweeney v. Baker, 13 W.Va. 182. (9) Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press. 4 Black. Com. 152; Rex v. Dean, 3 T. R. 431; Rex v. Cobbitt, 39 How. St. Tr. 49; Rex v. Cuthall, 17 How. St. Tr. 675; Louthan v. Com., 79 Va. 196.

R. F. Walker, attorney general, Morton Jourdan, assistant attorney general, and A. B. Duncan, prosecuting attorney, for the state.

(1) The indictment in this case is sufficient. The pleader closely followed the language of the statute creating the offense and has met all the requirements of the statute and constitution. Laws, 1891, p. 125; Strohm v. People, 43 N.E. 622. (2) The act under which the defendant has been indicted, tried, and convicted is constitutional and not in violation of that provision of the constitution guaranteeing freedom of speech or the right to say, write, or publish whatever he will on any subject. Sec. 4, art. 2, con.; In re Banks, 42 P. 693. (3) Whether the court committed error in the admission or exclusion of the testimony depends entirely upon the single question whether or not the indictment was sufficient and charged such facts as were necessary to constitute a violation of the statute. An examination of the rulings of the court will disclose the fact that no error was committed, but that the case was tried upon the proper theory that if the defendant had sold or disseminated or distributed this immoral publication, then he was guilty of a violation of the statute and that only two facts were necessary to his conviction: First, that the newspaper introduced was an immoral publication such as came within the prohibition of the statute, and second, that this defendant distributed, disseminated, and sold the paper. These facts were shown beyond question; in fact, there was no denial of either proposition, and, therefore, the verdict should not be disturbed upon the grounds that the testimony was insufficient or that illegal, irrelevant, and immaterial testimony was admitted. The legislature of this state has placed its stamp of disapproval by the enactment of this statute upon this infamous and immoral system of blackmail. (4) The testimony in this case shows the guilt of the defendant tried upon an indictment which violated no constitutional right guaranteed him and the judgment should be affirmed.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

[136 Mo. 231] Gantt, P. J.

The grand jury of Buchanan county preferred the following indictment against the defendant at the March term, 1896, of the criminal court of said county, the first count of which is as follows:

"The grand jurors of the state of Missouri, within and for the body of the county aforesaid, being duly impaneled and sworn, upon their oath do present that J. W. Van Wye, on the seventh day of March, 1896, at the county of Buchanan, and state aforesaid, unlawfully, willfully, and feloniously, did then and there engage in the business of disseminating a certain newspaper and printed paper commonly called and known as The Kansas City Sunday Sun, which newspaper and printed paper was then and there devoted mainly to the publication of scandals, whorings, lechery, assignation, intrigues between men and women, and immoral conduct [136 Mo. 232] of persons, against the peace and dignity of the state."

The second count of the indictment is as follows: "2nd. And the grand jurors aforesaid, on their oath aforesaid, do further say and present that the said J. W. Van Wye, on the seventh of March, 1896, at the county of Buchanan, and state aforesaid, did then and there unlawfully, willfully, feloniously, and knowingly have in his possession for sale, keep for sale, assist in the sale, expose for sale, gratuitously distribute and gave away a certain newspaper and printed paper commonly called and known as The Kansas City Sunday Sun, which said newspaper and printed paper was then and there devoted mainly to the publication of scandals, whoring, lechery, assignations, intrigues between men and women, and immoral conduct of persons, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state."

A motion to quash was overruled and the defendant was arraigned, tried and convicted and sentenced to imprisonment in the penitentiary for two years.

This indictment was founded upon an act of the thirty-sixth general assembly (Laws of Missouri, 1891, p. 125), which is as follows:

"Section 1. Every person or persons who shall, within this state, engage in the business of editing, publishing or disseminating any newspaper, pamphlet, magazine, or any printed paper, devoted mainly to the publication of scandals, whorings, lechery, assignations, intrigues between men and women, and immoral conduct of persons, or any person or persons who shall knowingly have in his or her possession for sale, or shall keep for sale, or expose for sale, or distribute, or in any way assist

Page 939

in the sale, or shall gratuitously distribute, or give away, any such newspaper, pamphlet, magazine [136 Mo. 233] or printed paper in this state, shall be deemed guilty of a felony, and on conviction thereof, shall be punished by imprisonment in the penitentiary for a term of not less than two nor more than five years."

The defendant urges various grounds for reversal and they will be considered in the order of their importance.

I. The constitutionality of the act of 1891, already quoted, is assailed because it is claimed to be in contravention of section 14 of the bill of rights of Missouri. That familiar section ordains that, "no law shall be passed impairing the freedom of speech; that every person shall be free to say, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and that in all suits and prosecutions for libel the truth thereof may be given in evidence."

This court has heretofore often asserted its right and duty to determine whether a legislative enactment solemnly passed and promulgated according to the forms of our constitution was in fact and substance repugnant to the constitution, and if so to declare it void. The exercise of this most important authority has attracted the attention of all intelligent students of our system of government. In assuming this high function our courts do not proceed on the theory that the judiciary is in any way superior to the two other co-ordinate departments, the executive and legislative, but solely because being required to declare the law of every case coming before them they must enforce the constitution as the paramount law whenever they find an enactment of the general assembly in conflict with it. Such questions are always delicate and none are more so than when it is charged that the freedom of speech and of the press has been invaded by an act of the legislature.

Keeping in view then the relation of this court...

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40 practice notes
  • 98 P. 281 (Kan. 1908), 15,335, Coleman v. MacLennan
    • United States
    • Kansas Supreme Court of Kansas
    • November 7, 1908
    ...assignations, intrigues of men and women, and other immoral conduct. ( In re Banks, Petitioner, 56 Kan. 242, 42 P. 693; State v. Van Wye, 136 Mo. 227, 37 S.W. 938, 58 Am. St. Rep. 627; Strohm v. The People, 160 Ill. 582, 43 N.E. 622.) Likewise newspapers may be suppressed which are made up ......
  • 127 S.W. 1 (Mo. 1910), Setzler v. Metropolitan Street Railway Company
    • United States
    • Missouri Supreme Court of Missouri
    • April 12, 1910
    ...Hamilton v. Railroad, 114 Mo.App. 504. (3) An instruction not based on the evidence is erroneous and should not be given. Hahn v. Cotton, 136 Mo. 227; Smith v. Sedalia, 152 Mo. 299; Press B. & M. Co. v. Buick Co., 151 Mo. 511; Regan v. Railroad, 144 Mo. 636; Price v. Railroad, 77 Mo. 51......
  • 137 S.W. 303 (Mo.App. 1911), Carroll v. United Railways Company of St. Louis
    • United States
    • Missouri Court of Appeals of Missouri
    • February 21, 1911
    ...209 Mo. 12; State v. Gordon, 191 Mo. 114; Eckert v. Transfer Co., 2 Mo.App. 36; Spangler v. Kite, 47 Mo.App. 230; State v. Van Wye, 136 Mo. 227; State v. Brown, 188 Mo. 451; Glasgow v. Railroad, 191 Mo. 347; Joyce v. Railroad, 129 Mo. 344; Montgomery v. Railroad, 90 Mo. 446; Ruckenberg v. R......
  • 208 S.W. 87 (Mo. 1918), The State v. Reeves
    • United States
    • Missouri Supreme Court of Missouri
    • December 23, 1918
    ...the same punishment as the principal. Sec. 4898, R. S. 1909; State v. Lawson, 239 Mo. 601; State v. Sykes, 191 Mo. 68; State v. Van Wye, 136 Mo. 243; State v. King, 194 Mo. 485. (4) Mere words of reproach, actions or gestures unaccompanied by personal violence are insufficient to reduce mur......
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40 cases
  • 98 P. 281 (Kan. 1908), 15,335, Coleman v. MacLennan
    • United States
    • Kansas Supreme Court of Kansas
    • November 7, 1908
    ...assignations, intrigues of men and women, and other immoral conduct. ( In re Banks, Petitioner, 56 Kan. 242, 42 P. 693; State v. Van Wye, 136 Mo. 227, 37 S.W. 938, 58 Am. St. Rep. 627; Strohm v. The People, 160 Ill. 582, 43 N.E. 622.) Likewise newspapers may be suppressed which are made up ......
  • 127 S.W. 1 (Mo. 1910), Setzler v. Metropolitan Street Railway Company
    • United States
    • Missouri Supreme Court of Missouri
    • April 12, 1910
    ...Hamilton v. Railroad, 114 Mo.App. 504. (3) An instruction not based on the evidence is erroneous and should not be given. Hahn v. Cotton, 136 Mo. 227; Smith v. Sedalia, 152 Mo. 299; Press B. & M. Co. v. Buick Co., 151 Mo. 511; Regan v. Railroad, 144 Mo. 636; Price v. Railroad, 77 Mo. 51......
  • 137 S.W. 303 (Mo.App. 1911), Carroll v. United Railways Company of St. Louis
    • United States
    • Missouri Court of Appeals of Missouri
    • February 21, 1911
    ...209 Mo. 12; State v. Gordon, 191 Mo. 114; Eckert v. Transfer Co., 2 Mo.App. 36; Spangler v. Kite, 47 Mo.App. 230; State v. Van Wye, 136 Mo. 227; State v. Brown, 188 Mo. 451; Glasgow v. Railroad, 191 Mo. 347; Joyce v. Railroad, 129 Mo. 344; Montgomery v. Railroad, 90 Mo. 446; Ruckenberg v. R......
  • 208 S.W. 87 (Mo. 1918), The State v. Reeves
    • United States
    • Missouri Supreme Court of Missouri
    • December 23, 1918
    ...the same punishment as the principal. Sec. 4898, R. S. 1909; State v. Lawson, 239 Mo. 601; State v. Sykes, 191 Mo. 68; State v. Van Wye, 136 Mo. 243; State v. King, 194 Mo. 485. (4) Mere words of reproach, actions or gestures unaccompanied by personal violence are insufficient to reduce mur......
  • Request a trial to view additional results