State v. Moore
| Decision Date | 30 October 1916 |
| Docket Number | 22221 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. MOORE et al. In re MOORE |
(Syllabus by the Court.)
Although the question, in what parish the offense was committed, is a question of fact, it does not pertain to the guilt or innocence of the accused. There is no constitutional prohibition of the right of the trial judge or of the Superior Court to decide questions of fact that do not pertain to the question of guilt or innocence of the person accused, when such questions are properly presented, in a criminal prosecution.
The requirement of article 9 in the Bill of Rights of the Constitution of this state, 'that all trials shall take place in the parish in which the offense was committed unless the venue be changed,' guarantees the defendant in a criminal prosecution, not merely that he shall not be convicted in any other parish than that in which the offense was committed, but that he shall not be tried in any other parish. Therefore, to have the benefit of that constitutional guaranty, a person accused of a crime has the right to have the question of venue or territorial jurisdiction of the trial court decided by the judge before being put on trial for the alleged offense.
The constitutional guaranty is not that all criminal trials shall take place in the parish wherein the offense is alleged in the bill of indictment or information to have been committed, but that all criminal trials shall take place in the parish in which the offense was committed. Therefore the allegation in the indictment that the crime charged was committed in the parish in which the indictment is presented may be traversed by the defendant's filing a plea to the jurisdiction of the trial court or a motion to quash the indictment, alleging that, if the offense charged was committed at all, it was committed in another parish than that alleged in the indictment. And, on trial of such a plea, the defendant has the right to introduce evidence to contradict the allegation that the alleged offense was committed in the parish in which the indictment is presented, and to have the question determined, not on the face of the indictment, but from the evidence adduced on the preliminary trial of the plea to the jurisdiction.
When the Act No. 121 of 1855 was adopted, there was no constitutional requirement that all criminal trials should take place in the parish in which the offense was committed; the only requirement in that respect was the provision of article 103 of the Constitution of 1852 that the accused should have a speedy public trial by an impartial jury of the vicinage. Therefore section 12 of the statute, providing that, under certain circumstances, a criminal trial might be had in another parish than that in which the offense was committed, was valid legislation, until it was repealed by article 105 of the Constitution of 1864, declaring that the accused person should have a speedy public trial by an impartial jury of the parish in which the offense was committed. As that provision of the Constitution of 1864 was embodied in article 6 of the Bill of Rights in the Constitution of 1868, the re-enactment of the provision of section 12 of Act No. 121 of 1855, as section 988 of the Revised Statutes, approved March 14, 1870, was of no effect, in so far as it contravened the provisions of the Constitution. That section of the Revised Statutes is yet null and of no effect in so far as it conflicts with the guaranty retained in the Bill of Rights of the Constitution of 1879, of 1898, and of 1913, that all trials shall take place in the parish in which the offense was committed, unless the venue be changed.
The word 'publish,' with reference to the crime of defamation by publishing a libelous article, has a technical meaning, to exhibit or expose the libelous matter. In that sense, each and every delivery, exhibition, or exposure of the libelous article may constitute a separate offense. But the word, 'publish,' has also a commonplace meaning, with reference to publishing a newspaper, magazine, or book. When the indictment accuses the defendant of having committed the crime of defamation by publishing a newspaper containing a libelous article, it does not follow that the mailing or delivery of a copy of the newspaper to each and every subscriber or purchaser was a separate offense on the part of the proprietor or publisher of the newspaper, or that a separate and distinct offense was committed in each and every jurisdiction into which the newspaper found circulation. The offense committed by the proprietor or publisher of the newspaper in such a case is but one offense, for which his liberty can be put in jeopardy only once. The parish in which the offense was committed by the proprietor or publisher of the newspaper, if the article published was libelous, is that in which the newspaper was printed and published, and the prosecution should take place in that parish only (quoting Words and Phrases, Publication).
A. V. Coco, Atty. Gen., H. H. Kilbourne, Dist. Atty., of Clinton (Vernon A. Coco, of Marksville, and Charles Kilbourne, of Clinton, of counsel), for the State.
Gustave Lemle and Benjamin T. Waldo, both of New Orleans, George H. Woodside, of St. Francisville, and George J. Woodside, of Clinton, for defendant.
John R. Hunter, Dist. Atty., of Alexandria, amicus curiae.
O'NIELL, J.
The relator and one W. J. Leppert were indicted for libel by the grand jury of the parish of East Feliciana. Four indictments were presented, referring to four different publications that appeared in the Times-Picayune in its issues of date, respectively, the 13th, 14th, 15th, and 16th of February, 1916. Except as to the date of the alleged crime and the annexed printed clipping of the article complained of in each case, the indictments are alike. The alleged offense is charged in this language, viz.:
'That one D. D. Moore and W. J. Leppert, late of the parish of East Feliciana, within the body of the parish of East Feliciana, on the 13th day of February, in the year of our Lord nineteen hundred and sixteen, did, with force and arms, maliciously defame Clarence Pierson by making, writing, publishing, or causing to be published, a certain false and maliciously defamatory libel, which said libel is as follows: [Here is attached the clipping from the Times-Picayune of the article complained of] contrary to the form of the statute of the state of Louisiana in such cases made and provided, and against the peace and dignity of the same.'
The defendants were arraigned, entered pleas of 'not guilty,' and were released on bonds. Thereafter they withdrew their pleas of 'not guilty,' and filed pleas to the jurisdiction of the court, and motions to quash the indictments and dismiss the prosecutions, on the ground that, if any crime was committed, it was committed, not in the parish of East Feliciana or within the jurisdiction of the Twenty-Fourth judicial district court, but in the city of New Orleans.
The district attorney entered a nolle prosequi in each case and immediately filed four bills of information in precisely the same language that was contained in the four indictments. The entering of the nolle prosequi and filing a bill of information in each case was done because of an informality in the indictment, having no relation whatever to the issues presented by the pleas to the jurisdiction and motions to quash.
The pleas to the jurisdiction and motions to quash the indictments were taken up and tried and submitted on a statement of facts agreed to by the prosecuting attorney and the attorneys for the defendants, and, having heard the arguments on behalf of the state and of the defendants, the court rendered judgment, overruling the pleas to the jurisdiction and motions to quash the indictments.
The defendants promptly took exception to the ruling of the court, overruling their pleas to the jurisdiction and the motions to quash, and gave notice to the presiding judge and to the district attorney that they would apply to this court for writs of certiorari and prohibition, of which applications we are now considering that of Daniel D. Moore.
The case is not submitted upon the allegations contained in the indictments, but upon the statement of facts admitted by the district attorney and the attorneys for the defendants. The facts admitted are that neither Daniel D. Moore nor W. J. Leppert ever went personally into the parish of East Feliciana and circulated the issues of the Times-Picayune in which the alleged libelous articles appeared; that the articles alleged to be libelous were set up and printed in the city of New Orleans, but circulated through the mails in the parish of East Feliciana, where Dr. Clarence Pierson resides; that the Times-Picayune, the newspaper in which the alleged libelous article was published, is printed in the city of New Orleans (though it circulates in the parish of East Feliciana), and has never been printed elsewhere than in the city of New Orleans, where the Times-Picayune Publishing Company, the corporation owning the newspaper, has its domicile; that Daniel D. Moore is the editor and manager of the Times-Picayune, and W. J. Leppert is the reporter over whose signature the alleged libelous articles appeared. They reside in the city of New Orleans.
The defendants allege in their petition to this court, and the allegations are in effect admitted in the answer of the respondent judge, that it was shown, on the trial of the pleas to the jurisdiction and motions to quash the indictments, that the Times-Picayune is entirely written, set up, and printed in the city of New Orleans, and in its finished form as a newspaper is deposited in the United States mails, and otherwise...
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... ... * * *' ... This exception was previously authorized by a statute which this court held unconstitutional in State v. Montgomery, 115 La. 155, 38 So. 949 (1905). Thereafter it was incorporated into the Constitution. See also [252 La. 586] State v. Moore, 140 La. 281, 72 So. 965 (1916). For statutory authority in Louisiana which established venue in a parish other than where the offense was 'committed', see former LSA-R.S. 15:13, 15:14, and 15:15. See also State v. Coon, 242 La. 1019, 141 So.2d 350 (1962) ... The majority ... ...
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