State v. McKee

• Decision Date: 22 May 1900
• Citation: 46 A. 409,73 Conn. 18
• Court: Connecticut Supreme Court
• Parties: STATE v. McKEE.

46 A. 409

73 Conn. 18

STATE

v. McKEE.

Supreme Court of Errors of Connecticut.

May 22, 1900.

Appeal from superior court, New Haven county; Alberto T. Roraback, Judge.

John A. McKee was convicted of selling a newspaper principally made up of criminal news, police reports, and pictures and stories of bloodshed, lust, and crime, and he appeals. Reversed, and new trial granted.

The offense was charged as follows: "John A. McKee," etc., "on the 3d day of September, A. D. 1899, unlawfully did sell to Phillip Lantenback, offer, and have in his possession with intent to sell and offer, a certain paper devoted to the publication and principally made up of criminal news, police reports, pictures and stories of deeds of bloodshed, lust, and crime, which said paper then consisted of twelve pages; and at the top. or head of the first of said pages were printed the words and figures following, to wit: 'Waterbury Herald. Vol. 11, No. 602. Waterbury, Conn. Sept. 3, 1899. Price, five cents;' and at the top or head of each succeeding page of said paper were printed the words and figures following, to wit, 'Sunday Herald, Sept. 3, 1899;' against the peace," etc. The information contained three other counts, each charging the sale on a different date of a different issue of the same paper. The defendant demurred to the complaint. The demurrer was overruled. The finding of the court (Roraback, J.) shows that upon the trial the state's attorney offered in evidence a copy of the paper described in each count. The court, upon objection by the accused, ruled that the papers were admissible, as tending to prove the charge in the information, and that they should go to the jury. The defendant excepted. The papers so admitted are marked as exhibits, and appear in the record. By agreement, the state's attorney and attorney for accused marked the articles to which they desired to call attention as supporting their respective claims. The defendant presented in writing requests to charge in the form of an extended and argumentative charge. The court declined to charge as requested. The charge as given contained the following passages:

"First. In my opinion, gentlemen, the law upon which this prosecution is brought is a constitutional and valid one; but, under the limitations already stated, you are the judges of the law as well as of the facts, and it is for you to say on all the evidence, and under the law as you find it to be, and as you conscientiously believe it to be, whether the accused is guilty or not guilty of the crime charged against him. The statute upon which this prosecution is based reads as follows: 'Every person who shall sell, lend, give, or offer, or have in his possession with intent to sell, transport, lend, give, or offer any book, magazine, pamphlet, or paper devoted to the publication or principally made up of criminal news, police reports, or pictures and stories of deeds of bloodshed, lust, or crime, shall be punished,' etc. As I have stated to you, this statute, in my opinion, is constitutional, and a valid police regulation.

"Second. A paper comes within the description of the offense alleged in the information, and also within the prohibition of the statute, if it is devoted to, or principally made up of, either criminal news, or police reports, or pictures and stories of deeds of bloodshed, or pictures and stories of lust, or pictures and stories of crime. 'Criminal news,' within the Intendment of the statute, means reports and articles concerning, re lating to, and setting forth acts or conduct involving criminal wrongdoing. 'Police reports,' within the intendment of the statute, means articles and statements concerning the doings of the police in the detection, arrest, or prosecution of criminals. 'Pictures and stories of deeds of bloodshed,' within the intendment of the statute, means recitals or narratives, either true, false, or fictitious, or of or relating to or involving deeds concerning the shedding of human blood, such as assaults, murder, manslaughter, and the like, and accompanied by representations of persons, forms, or scenes connected with, depicting, or portraying such stories.

"Third. The statute provides that the paper must be devoted to, or principally made up of, the news, reports, or pictures and stories mentioned in the statute. 'Devoted to the publication of the matters in question, within the intendment of the statute, means that such matters are conspicuously and with especial prominence set forth and displayed therein. 'Principally made up of the matters in question, within the intendment of the statute, means that the matters in question shall appear in the paper in such quantity, prominence, and arrangement as to form or become a leading feature or characteristic of such paper. The words 'devoted to the publication of,' or the words 'principally made up of,' taken separately or together, do not necessarily imply or mean that any certain percentage of the space or that the entire paper shall be filled or occupied with the matter in question. These words and phrases do imply that their prohibited matter shall be a prominent and leading characteristic or feature of the publication; that special attention shall be devoted to the publication of the prohibited items. It is a question for the jury to determine whether or not these papers, or any of them, offered in evidence in support of the information, are devoted to the publication or principally made up of criminal news, police reports, or pictures and stories of deeds of bloodshed, lust, or crime, within the rules already stated to you. It is also a question of fact for the Jury to determine, upon all the evidence in the case, whether the accused or his agent, under the rules given, on or about the days alleged in the information, sold or offered, or had in his possession with intent to sell or offer, said papers, or any of them, as charged in the several counts of the information.

"Fourth. In your deliberations you will carefully examine each paper in evidence with the count based thereon, and determine as a matter of fact whether or not these papers, or any of them, come within the definition and prohibition of the statute in question."

The appeal assigns error (1) in overruling the demurrer; (2) in refusing to charge as requested; (3) in the charge as given in each of the four passages above quoted; (4) in admitting in evidence the whole paper described in each of the counts.

Levi N. Blydenburgh and Robert B. De Forest, for appellant. William H. Williams, state's Atty., for the State.

HAMERSLEY, J. (after stating the facts).The demurrer to the complaint was properly overruled. The only reasons specified in the demurrer that call for notice are these: "(3) Because it [the act of 1895, on which the prosecution was brought] restricts the constitutional right to publish the truth; (4) because it is not alleged that the matter is obscene, blasphemous, scandalous, or libelous."

There is no constitutional right to publish every fact or statement that may be true. Even the right to publish accurate reports of judicial proceedings is limited. The substance of the rule is briefly stated by Judge Cooley in his work on Constitutional Limitations: "If the nature of the case is such as to make it improper that the proceedings should be spread before the public, because of their immoral tendency, or of the blasphemous or indecent character of the evidence exhibited, the publication, though impartial and full, will be a public offense, and punishable accordingly." Cooley, Const. Llm, p 449. This rule applies with a far wider range to ordinary matters.

If the fourth specification implies a claim that the power of the state to punish acts as injurious to the public health, safety, or morals is limited to acts within the adjudicated scope of the common-law offenses of nuisance and libel, it is unfounded. These elastic common-law crimes are based on the broad principle that conduct injurious to public health, safety, and morals may be restrained and punished by the state, although the same conduct. if harmless, cannot validly be prevented. Though defined by an unwritten law, the crimes in fact, like most common-law rules, depend on legislative authority, and may be restricted or extended by the same power. Upon a prosecution of the common-law offense, the question whether the conduct charged is injurious may be a question of fact for the jury; but there are cases in which the legislature may withdraw from the offenses certain specified acts as not injurious, or may declare certain conduct to be injurious, and make such conduct a statutory offense. When this is done, the injurious nature of the conduct is determined, subject, in some instances, to judicial review by the legislature, and is not a question of fact involved in a prosecution under such statute. State v. Main, 69 Conn. 123, 133, 37 Atl. 80, 36 L. R. A. 623; State v. Cunningham, 25 Conn. 195, 203. The definition of the perversion of the press to the injury of public morals as the equivalent of conduct which at common law had been punished upon indictment for libel is inadequate and unsound. It substitutes the effect for the cause. The law of libel, as related to such conduct, rests upon the principle of the power and duty of the state to protect each citizen from malicious injury, and society from attacks upon its safety, as well as from the pollutions of immorality, and is coincident in its range with a large portion of the field covered by that principle, but Joes not mark its limits. This erroneous view was set forth with much ingenuity and ability in the argument of counsel reported in the comparatively recent case ofIn reRapier, 143 U. S. 110, 12 Sup. Ct 374, 36 L. Ed. 93; but the decision involved a condemnation of the view, although the opinion deals mainly with conclusions, without detailing the reasons, owing, as the court states, to the death of Mr. Justice...