State v. Whiteside

CourtSupreme Court of Connecticut
Writing for the CourtBefore BALDWIN; MELLITZ; In this opinion BALDWIN; MURPHY
Citation148 Conn. 208,169 A.2d 260
PartiesSTATE of Connecticut v. Loring WHITESIDE. Supreme Court of Errors of Connecticut
Decision Date21 March 1961

Page 260

169 A.2d 260
148 Conn. 208
STATE of Connecticut
v.
Loring WHITESIDE.
Supreme Court of Errors of Connecticut.
March 21, 1961.

[148 Conn. 209]

Page 261

B. Fred Damiani, New Haven, for appellant (defendant).

George R. Tiernan, Prosecuting Attorney, New Haven, for appellee (state).

Before [148 Conn. 208] BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

[148 Conn. 209] MELLITZ, Associate Justice.

The defendant was charged, in an information containing twenty-three counts, with having published a series of libels in violation of [148 Conn. 210] what is now General Statutes § 53-174. 1 Upon the trial to the jury, he was found guilty on four counts, and he has taken this appeal. His principal claims are that the information was fatally defective in that it lacked an allegation of malice; that the state failed to introduce evidence of actual malice in the publication of the alleged libels; that the state failed to prove that a breach of the peace resulted from the publication of the libels; and that a finding of guilt on count 12 could not be sustained when the defendant was found not guilty on other counts in which he was charged with publishing the same or similar statements. Error is assigned also in the charge, in the finding, and in rulings on evidence.

The alleged libels were published in a small weekly paper, 'the grapevine press,' printed, published and distributed by the defendant. Each of the twenty-three issues from May 21, 1958, through October 22, 1958, was made the basis of a separate count in the information. In each count, the defendant was accused of publishing, in a designated issue of the paper, a libel concerning certain named persons, in violation of what is now § 53-174. The information was in the short form authorized by Practice Book § 344. This section provides that an offense may be charged by using the name given to it by the common law or by a statute, or by stating so much of the definition of the offense as is sufficient to give the court and the accused notice of what offense is intended to be charged. Practice Book § 350 provides that an indictment or information[148 Conn. 211] need not allege that the offense was committed or the act done 'maliciously,' unless such characterization is necessary to charge the offense under § 344. The practice authorized by § 344 has been held to be constitutional. State v. Davis, 141 Conn. 319, 321, 106 A.2d 159. The claim of the defendant is that the alleged libels were published on occasions of privilege and therefore that an allegation of malice was essential to charge the offense under § 344; and further, that proof that the publications were made maliciously was required to sustain a conviction.

At common law, malice constitutes the essence of the offense of criminal libel and, in a prosecution, is a necessary allegation and an element in the proof. The malice referred to is merely the malice which the law implies from the publication of defamatory matter and means no more than the intent to publish it. The malice is presumed from the publication, and the presumption stands as proof. State v. Pape, 90 Conn. 98, 106, 96 A. 313. Under the statute upon which the prosecution here is based, the offense consists of the publication

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of the defamatory matter. That, itself, constitutes the crime, and prima facie proof of malice is not required. Id. The situation changes, however, when it is shown that the publication was made in circumstances which the law recognizes as an occasion of privilege. Flanagan v. McLane, 87 Conn. 220, 222, 87 A. 727, 88 A. 96; Atwater v. Morning News Co., 67 Conn. 504, 516, 34 A. 865. Such an occasion rebuts the implication of malice which the law draws from the publication of false and defamatory matter, and casts upon the state the burden of proving that the occasion had been abused and that the defendant was in fact actuated by malice toward the libelee. State v. Pape, [148 Conn. 212] supra, 90 Conn. 107, 96 A. 316. The state need not set forth the circumstances surrounding the publication, showing whether the occasion was one of privilege. That burden is on the accused. Id., 90 Conn. 106, 96 A. 316.

The information here charged the defendant with publishing libels concerning certain named persons, but those persons were not otherwise described or identified. It is the defendant's contention that they were, in fact, attorneys at law and public officers and that the occasions of the publications were privileged. The facts showing the occasions to be privileged did not, as in the Pape case, appear from the contents of the information. It was therefore not essential that the information contain an allegation that the publications were maliciously made, Practice Book § 350. The burden was on the defendant to prove, by a fair preponderance of the evidence, his claim of privilege. State v. Gardner, 112 Conn. 121, 124, 151 A. 349; State v. Pape, supra, 90 Conn. 106, 96 A. 316. If he sustained that burden, it became incumbent upon the state to prove that the privilege was abused and that in publishing the defamatory matter the defendant was, in fact, actuated by malice. Id., 90 Conn. 107, 96 A. 316. The court so instructed the jury in its charge. The absence of an allegation of malice did not render the information defective.

The contention that the state...

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34 practice notes
  • State v. Brown
    • United States
    • Supreme Court of Connecticut
    • May 3, 1972
    ...On occasion we have stated that such facts must be proved by the defendant by a fair preponderance of the evidence. State v. Whiteside, 148 Conn. 208, 212, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33; State v. Schweitzer, supra. In all of these cases, however, the ul......
  • Hopkins v. O'Connor, No. 17743.
    • United States
    • Supreme Court of Connecticut
    • July 3, 2007
    ...282 Conn. 847 sufficiently shown by proof that the publications were made with improper and unjustifiable motives." State v. Whiteside, 148 Conn. 208, 212, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33 (1961); see also Bleich v. Ortiz, 196 Conn. 498, 504, 493 A.2d 236 ......
  • State v. Arroyo, No. 18031.
    • United States
    • Supreme Court of Connecticut
    • July 21, 2009
    ...requires an in-depth review of the development of our jurisprudence governing 292 Conn. 576 inconsistent verdicts. In State v. Whiteside, 148 Conn. 208, 209-10, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33 (1961), the defendant was charged in a twenty-three count info......
  • State v. Coleman
    • United States
    • Supreme Court of Connecticut
    • October 22, 1974
    ...charged. State v. Beaulieu, 164 Conn. 620, 624, 325 A.2d 263; State v. Couture, 151 Conn. 213, 215-216, 196 A.2d 113; State v. Whiteside, 148 Conn. 208, 212, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33. To afford to an accused his full rights, the Practice Book (§ 49......
  • Request a trial to view additional results
34 cases
  • State v. Brown
    • United States
    • Supreme Court of Connecticut
    • May 3, 1972
    ...On occasion we have stated that such facts must be proved by the defendant by a fair preponderance of the evidence. State v. Whiteside, 148 Conn. 208, 212, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33; State v. Schweitzer, supra. In all of these cases, however, the ul......
  • Hopkins v. O'Connor, No. 17743.
    • United States
    • Supreme Court of Connecticut
    • July 3, 2007
    ...282 Conn. 847 sufficiently shown by proof that the publications were made with improper and unjustifiable motives." State v. Whiteside, 148 Conn. 208, 212, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33 (1961); see also Bleich v. Ortiz, 196 Conn. 498, 504, 493 A.2d 236 ......
  • State v. Arroyo, No. 18031.
    • United States
    • Supreme Court of Connecticut
    • July 21, 2009
    ...requires an in-depth review of the development of our jurisprudence governing 292 Conn. 576 inconsistent verdicts. In State v. Whiteside, 148 Conn. 208, 209-10, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33 (1961), the defendant was charged in a twenty-three count info......
  • State v. Coleman
    • United States
    • Supreme Court of Connecticut
    • October 22, 1974
    ...charged. State v. Beaulieu, 164 Conn. 620, 624, 325 A.2d 263; State v. Couture, 151 Conn. 213, 215-216, 196 A.2d 113; State v. Whiteside, 148 Conn. 208, 212, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33. To afford to an accused his full rights, the Practice Book (§ 49......
  • Request a trial to view additional results

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