Ashton v. Com.

• Decision Date: 18 June 1965
• Citation: 405 S.W.2d 562
• Parties: Steve ASHTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 562

405 S.W.2d 562

Steve ASHTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

June 18, 1965.

Certiorari Granted Jan. 17, 1966. See 86 S.Ct. 537.

Dan Jack Combs, Pikeville, Ephraim London, New York City, for appellant.

Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, Tolbert Combs, Commonwealth Atty. for Perry County, Hazard, for appellee.

CLAY, Commissioner.

Appellant was convicted of the common law crime of criminal libel and his punishment fixed at six months in jail and a $3,000 fine. The principal ground urged for reversal is that the nature of the offense was so 'vague' and 'inclusive' that appellant's conviction violated his constitutional rights of freedom of speech and due process. ¹ This raises a novel and serious question which we will dispose of first.

The charge in the indictment is as follows:

'On or about the 22nd day of March, 1963, in Perry County, Kentucky, the above named defendant committed the offense of criminal libel, by publishing a false and malicious publication which tends to degrade or injure Sam L. Luttrell, Charles E. Combs, Mr. and Mrs. W. P. Nolan, against the peace and dignity of the Commonwealth of Kentucky.'

Sam Luttrell was the chief of police of Hazard, Kentucky; Charles Combs was the sheriff; Mr. and Mrs. Nolan edited a local newspaper. The alleged defamatory matter appeared in a printed pamphlet entitled 'Notes on a Mountain Strike', which was written by the defendant. He was a college student from Ohio who had come to Hazard to help unemployed miners in that area. This was a time of serious unrest in Perry County.

Although defendant raises some question about it, there is no doubt that the evidence proved 'publication' of this pamphlet. The proof further establishes, and defendant admits, that certain statements therein, referring to the chief of police and the sheriff, were defamatory per se and were false. Though defendant contends the statements made about Mrs. Nolan (Mr. Nolan is not involved) were true, there was sufficient evidence that the statements accusing her of a breach of trust in the distribution of certain funds were in essence false.

By instructions to the jury the trial court made a most commendable effort to identify the crime more fully than was done in the indictment. To convict, the jury was required to find the defendant 'did unlawfully publish * * * certain libelous and defamatory matter' which was 'false and libelous, and was so known to be false and libelous when published by the defendant, and was written and published by him solely and for the purpose of bringing (the complaining witnesses) into great contempt, scandal, infamy and disgrace, and for the purpose of injuring, scandalizing and vilifying the name and reputation (of the complaining witnesses) * * *.'

The court further instructed 'that criminal libel is defined as any writing calculated to create disturbances of the peace, corrupt the public morals, or lead to any act, which, when done, is indictable'; and that 'malice' was 'an essential element of the offense'. The jury was also advised that truth of the statements was a complete defense. These instructions were in fact so comprehensive in detailing different aspects of the crime (although omitting a definition of 'malice') as to be somewhat confusing. However, defendant claims no specific error in the instructions.

The basic contention is that the case law of Kentucky does not adequately define the crime, and the trial court's attempt to delineate its elements was so vague, multifarious, and indefinite, and so inclusive of innocent acts, that the law lacks certainty with respect to the conduct condemned. Therefore, it is argued the conviction of the defendant deprived him of both the right of free speech and due process of law.

We will assume, although as far as we can discover after exhaustive research no case as decided this particular point, that the same certainty required of a criminal statute applies to a common law crime. See Sullivan v. Brawner, 237 Ky. 730, 36 S.W.2d 364; Roberts v. United States, 6 Cir., 226 F.2d 464; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; American Communications Association, CIO v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 1391.

It is true that the offense of criminal libel has been subjected to stress and strain through its long period of development since the existence of the Court of the Star Chamber in England around the year 1600. ² A distinction was then recognized between defamation of a private person and a public official (which has continued to this day). With respect to the former, the real offense was the tendency of defamatory words to incite a breach of the peace. Where a public official was involved, criminality consisted of the scandalous attack upon the government. This latter was seditious libel, a political offense, ³ and most prosecutions for criminal libel in the United States seem to reflect shadows of this long since discredited ground of criminality.

It has been roundly questioned whether there ever was actually a common law crime of seditious criminal libel in England, ⁴ or if so, whether it survived the first amendment to the federal constitution. ⁵ In any event, it is certain that the English crime, as such, was not imported into the United States. This conclusion is inescapable when we consider the elements of the English crime, which constitutions, statutes and court decisions have substantially modified. One could be guilty of criminal libel under the English law without a showing of (1) malice, (2) falsity, or (3) publication, and (4), without a jury's finding the published matter was libelous. That was the status of the so-called common law criminal libel of England when written constitutions were adopted in the United States. It was against this background that the right of freedom of speech was recognized.

The first amendment to the Constitution of the United States provides that: 'Congress shall make no law * * * abridging the freedom of speech, or of the press; * * *.'

Section 1 (subsection four) of the Kentucky Constitution recognizes as an inalienable right of all men: 'The right of freely communicating their thoughts and opinions.'

Section 8, Kentucky Constitution, provides in part: 'Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.'

Section 9, Kentucky Constitution, provides: 'In prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libel the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.' ⁶

The above passages clearly show that both federal and state governments were attempting in some manner to escape the abuses of criminal libel prosecutions in England when they were written into American constitutional law. Also, with adoption of these provisions, emphasis shifted from the protection of political institutions to the protection of the individual's right of free expression. As an original proposition it would have been neither difficult nor unreasonable for the courts of this country thereafter to conclude that the common law crime of criminal libel had not survived our federal and state constitutions. There is respectable authority for that view even today. ⁷

However, the fact remains that the crime of criminal libel is recognized and enforced throughout the United States. While many states have made the offense a statutory crime, the courts of those states which have not legislated on the subject have acknowledged the existence of the crime in its common law form. ⁸ In the only two cases we have found where the question was squarely presented as to whether the common law crime survived in the United States, the answer, after careful consideration, was in the affirmative. Commonwealth v. Whitmarsh (Mass.1836), Thacher's Criminal Cases (page 441), and Commonwealth v. Chapman, 54 Mass. (13 Metcalf) 68 (1847).

In Kentucky, as heretofore noted, section 9 of the Constitution refers to 'indictments for libel'. Section 132 of the Criminal Code dealt with such indictments. In at least six Kentucky cases this Court has recognized the common law crime. Tracy v. Commonwealth, 87 Ky. 578, 9 S.W. 822 (1888); Smith v. Commonwealth, 98 Ky. 437, 33 S.W. 419, 17 Ky.Law Rep. 1010 (1895); Browning v. Commonwealth, 116 Ky. 282, 76 S.W. 19 (1903); Commonwealth v. Duncan, 127 Ky. 47, 104 S.W. 997 (1907); Yancey v. Commonwealth, 135 Ky. 207, 122 S.W. 123 (1909); Cole v. Commonwealth, 222 Ky. 350, 300 S.W. 907 (1927). It is significant that in none of those cases did the defendants question the nature of the crime or the certainty of the elements of which it consisted. While the same questions were not involved in each case, and while in none of them do we find a comprehensive definition of criminal libel, they jointly recognize its four basic elements: (1) written words which are defamatory per se, (2) publication, (3) falsity, and (4) malice.

Some of these cases made reference to another aspect of the crime which defendant contends contributed to the vagueness and uncertainty of the law. This was the tendency of the defamatory words to lead to a 'breach of the peace'. In the Tracy case it was said '(t)he publication is, in effect a breach of the peace'. In the Duncan case it was said that the publication 'was manifestly calculated to create a disturbance of the public peace'. In the Browning case it was said 'the publication amounts to an indictable offense, inasmuch as it tends to provoke violence and disturb the peace of society'. In Provident Sav. Life Assur. Soc. v. Johnson, 115 Ky. 84, 72 S.W. 754 (1903), a...