State v. Moity

• Decision Date: 16 December 1963
• Docket Number: No. 46708,46708
• Parties: STATE of Louisiana v. Warren J. MOITY.
• Court: Louisiana Supreme Court

Page 149

159 So.2d 149

245 La. 546

STATE of Louisiana v. Warren J. MOITY.

No. 46708.

Supreme Court of Louisiana.

Dec. 16, 1963.

Rehearing Denied Jan. 20, 1964.

Bentley G. Byrnes, Owen J. Bradley, New Orleans, Emile A. Carmouche, Jr., Crowley, for appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. Y. Fontenot, Acting Dist. Atty., for appellee.

FOURNET, Chief Justice.

The defendant, Warren J. Moity, having been charged in a Bill of Information with the defamation of Knowles M. Tucker, district attorney of Iberia Parish, in violation of R.S. 14:47, ¹ is appealing from his conviction and sentence thereunder to pay a fine of $1,000 and costs; in default thereof, to serve 60 days in the parish jail. For the reversal of this conviction and sentence he relies on errors allegedly committed during the course of the trial to which timely objection was made, these being preserved in five Bills of Exceptions that were duly perfected.

The prosecution is predicated on Article 39 of a 106-paragraph petition filed by Moity in the Louisiana Supreme Court in which he sought a public hearing for the purpose of establishing the violation of public trust by various officials of Iberia Parish, and specifically charged that Tucker had 'illegally committed to the Louisiana State Penitentiary on perjured testimony, known to Sheriff Gerard Wattigny and the District Attorney Knowles M. Tucker from the 16th Judicial District, in and for the Parish of Iberia,' one Edward Adams, PMB 53003.

In a motion to quash the information the defendant contended it was fatally defective in that it (1) contains no allegations of fact that are defamatory and does not, therefore, charge a crime; (2) is based on a statement attributed to the defendant as having been made in a petition in a legal proceeding and is, therefore, qualifiedly privileged; and (3) is unconstitutional if this statement is violative of R.S. 14:47, defining the crime of defamation and fixing the penalty therefor, or is construed as coming within its scope, for this would abridge the freedom of speech guaranteed by the First Amendment to the Constitution of the United States and the prohibition therein against the passage by Congress of any statute contravening this guaranty, which prohibition extends to the State of Louisiana through the provisions of the Fourteenth Amendment to the federal constitution. When the trial judge overruled this motion, the first Bill of Exceptions was reserved.

These identical issues were urged in a similar case on appeal here, State v. Webster, La., 159 So.2d 140, and were there adjudicated adversely to the accused. See, also, State v. Garrison, 244 La. 787, 154 So.2d 400, and the authorities therein cited.

There is clearly no merit to the first contention for a mere reference to the information will disclose the defendant was charged, in language tracking the pertinent provisions of R.S. 14:47 as set out above in Footnote No. 1, with having, on or about August 25, 1962, in the Parish of Iberia, 'unlawfully and maliciously' published and expressed' in writing to persons other than the party defamed,' the above quoted statement from the petition filed by him in our court. To charge a person who is, by law, sworn to prosecute all offenses and crimes occurring within his jurisdiction, as did the defendant in seeking a public hearing in that instance, with having illegally committed a person to the state penitentiary is tentamount to accusing him of malfeasance in office. To further charge this action was taken on testimony known to the prosecutor to be perjured adds to the gravity thereof. It is unquestioned such a statement would tend to expose this public official to hatred, contempt, and ridicule, as well as to deprive him of the benefit of public confidence, thus injuring him in his business and occupation--not only as a district attorney but also as a lawyer.

The second ground urged as the basis for the motion to quash the information is equally without merit. As pointed out in the case of State v. Webster, supra, 'the fact that the communication was qualifiedly privileged does not of itself render the information ineffective, the state having charged that the alleged libel was uttered maliciously,' which, of necessity, presents a matter for determination on the merits. ²

In disposing of similar charges of unconstitutionality as set out under the third contention, we recognized in the Garrison case, supra, that under decisions of the United States Supreme Court the freedoms guaranteed individuals under the First Amendment are protected under the Fourteenth Amendment from invasion by the states. See, also, State v. Cox, La., 158 So.2d 172.

However, these prohibitions against invasion by the states as set forth in the decisions of the highest court of our country are not so all-inclusive they cover with a protecting blanket any and all statements made or published by individuals or organizations. In the early and celebrated case of People v. Croswell, decided in 1804, where the defendant was accused of defaming the then President of the United States, Thomas Jefferson, it was pointed out that 'The founders of our governments were too wise and too just ever to have intended, by the freedom of the press, a right to circulate falsehood as well as truth, or that the press should be the lawful vehicle of malicious defamation, or an engine for evil and designing men to cherish, for mischievous purposes, sedition, irreligion, and impurity. Such an abuse of the press would be incompatible with the existence and good order of civil society.' 3 Johnson's cases, at page 337.

The decisions of the states, as well as of the United States Supreme Court and the recognized and renowned commentators on the source and meaning of the provisions of our federal constitution and Bill of Rights, are replete with expressions reflecting that the primary purpose for the guaranty of freedom of speech and the press in the First Amendment was to insure that Previous restraints upon the publication of beliefs, whether spoken or written, would be prohibited--not that those disseminating them could do so with impunity and thus go unchallenged if the consequences of such publication unjustifiably damaged others. See, Patterson v. Colorado ex rel. Attorney General, 205 U.S. 454, 27 S.Ct. 556, 51 L.Ed. 879; Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; State v. Van Wye, 136 Mo. 227, 37 S.W. 938; State v. Boyd, 86 N.J.L. 75, 91 A. 586; National Labor Relations Board v. M. E. Blatt Co., 3 Cir., 143 F.2d 268, certiorari denied 323 U.S. 774, 65 S.Ct. 135, 89 L.Ed. 619; People v. Feiner, 300 N.Y. 391, 91 N.E.2d 316, affirmed 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295; Times Film Corporation v. City of Chicago, D.C., 139 F.Supp. 837, affirmed 7 Cir., 244 F.2d 432, reversed on other grounds at 355 U.S. 35, 78 S.Ct. 115, 2 L.Ed.2d 72; Shively v. Garage Employees Local Union No. 44, 6 Wash.2d 560, 108 P.2d 354; Baxley v. United States, 4 Cir., 134 F.2d 937; 6 R.C.L. 253, Sections 239--242; 33 Am.Jur. 291, Section 308, et seq., and the authorities therein cited.

To state it succinctly as was done in State v. Van Wye, supra, 'The laws punishing criminal libel have never been deemed an infringement of this constitutional guaranty.' In that decision it was further pointed out that 'The constitutional liberty of speech and of the press, as we understand it, simply guaranties the right to freely utter and publish whatever the citizen may desire, and to be protected in so doing, Provided, always, that such publications are not blasphemous, obscene, and scandalous in their character, so that they become an offense against the public, and, by their malice and falsehood, injuriously affect the character, reputation, or pecuniary interests of individuals. The constitutional protection shields no one from responsibility for abuse of this right.' (The emphasis has been supplied.)

In discussing the purpose of these constitutional privileges as historically conceived and guaranteed, the United States Supreme Court, in Near v. Minnesota ex rel. Olson, supra, pointed out: 'In determining the extent of the constitutional protection, it has been generally, if not universally, considered that it is the chief purpose of the guaranty To prevent previous restraints upon publication. The struggle in England (from which country the criminal law of Louisiana is deraigned), directed against the legislative power of the licenser, resulted in renunciation of the censorship of the press. The liberty deemed to be established was thus described by Blackstone: 'The liberty of the press is indeed essential to the nature of a free state; but this consists in laying No previous restraints upon publication, and not in freedom from censure for criminal matter when published. 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; but If he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.'' 283 U.S. at pages 713 and 714, 51 S.Ct. at pages 630, 75 L.Ed. 1357. (The emphasis and words within brackets have been supplied.)

It is on this theory that statutes of the various states regulating the dissemination of information--both spoken and printed, and pictures as well as words--have been held to be constitutional, and statutes denouncing libels and defamations as crimes maintained. They are considered as having been enacted under a valid exercise of the police power of the various states and not, therefore, to be an unconstitutional invasion by the states of the freedoms of speech and the press as guaranteed by the First Amendment. The authorities sustaining this view are legion. See, Adams Newark Theatre Co. v. City of Newark, 22 N.J. 472, 126...