Weston v. State

• Decision Date: 20 October 1975
• Docket Number: No. CR--75--49,CR--75--49
• Citation: 258 Ark. 707,528 S.W.2d 412
• Parties: Joseph H. WESTON, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 412

528 S.W.2d 412

258 Ark. 707

Joseph H. WESTON, Appellant, v. STATE of Arkansas, Appellee.

No. CR--75--49.

Supreme Court of Arkansas.

Oct. 20, 1975.

Cearley & Gitchel, Little Rock, for appellant.

Jim Guy Tucker, Atty. Gen. by Gary Isbell, Asst. Atty. Gen., Little Rock, for appellee.

LeROY AUTREY, Special Justice.

Joseph H. Weston, the editor and publisher of the Sharp Citizen, a weekly newspaper of Cave City, has appealed his conviction in the Clay County Circuit Court of the crime of criminal libel as defined in Section 41--2401 et seq., Arkansas Statutes. The information under which Weston was convicted alleged that he had on November 30, 1973, published in the Sharp Citizen 'a false, malicious and defamatory libel' which 'tended to impeach the honesty, integrity, veracity and reputation of . . . Liddell Jones,' the Sheriff of Clay County. The information charged and the undisputed evidence showed that the offending article in the Sharp Citizen was headlined as follows:

'SHARP CITIZEN MAKES A MISTAKE IN REPORTING STORY OF CORNING AND DISCOVERS THAT NARCOTICS RACKET FLOURISHES IN CLAY COUNT AND CORNING UNDER DIRECTION OF SHERIFF LIDDELL JONES, AN APPOINTEE OF GOVERNOR DALE BUMPERS.'

The article below this headline included the following statement:

'In the meantime, however, we also discovered that law enforcement in Clay County has dropped to a low level again under the direction of the present sheriff, Liddell Jones, appointee of Governor Dale Bumpers who took office following the passing away of Sheriff Pond. It was Sheriff Liddell Jones and his deputies who made the threats of violence to witnesses of the death of Street Shaw.'

Mary D. Shaw, the widow of Street Shaw, deceased, testified that shortly after her husband had been shot and killed on October 11, 1973, Weston had come to her house for an interview to find out how her husband had been killed. Mrs. Shaw testified that she gave Weston the information which is set forth in the above set out newspaper headline and article. She said that she told Weston that William Donald, who was in jail when her husband was killed, told her that he could get dope from Sheriff Jones.

Sheriff Jones had served as Sheriff of Clay County for about 15 months, succeeding Sheriff Bill Pond who had been killed in an accident. He testified that he had made the complaint against Weston; that the offending headling and the story appearing in the Sharp Citizen were false; that since he had been sheriff he had made arrests and pursued prosecutions in 20 to 30 drug and narcotics violations; and that he had been subjected to some degree of ridicule, scorn and public hatred from the offending headline and article in the Sharp Citizen.

The trial court jury instructions included the usual instructions in criminal prosecutions and the following:

COURT'S INSTRUCTION NO. 3

'It is unlawful, a crime, and a felony for any person to maliciously defame, either by writing, printing, or by signs or pictures or the like tending to blacken the memory of one who is dead, or impeach the honesty, integrity, veracity, virtue of reputation, or to publish the natural defects of one who is living and thereby expose him to hatred, contempt and ridicule as set out in Section 41--2401 of the Arkansas Statutes.'

COURT'S INSTRUCTION NO. 5

'In all prosecutions for libel the truth may be given in evidence in justification thereof.'

The Court refused the below set out instructions requested by the appellant:

REQUESTED INSTRUCTION NO. 1

'You are instructed that there are situations in which the law protects the author of a defamatory statement from prosecution for Criminal Libel. Where this protection is afforded a privilege is said to exist and even though the statement made be untrue, the author may not be subjected to criminal prosecution unless the statement was published with actual knowledge of its falsity or with reckless disregard of whether it was false or not. One area in which such a privilege exists is the area of comment upon matters of public concern or criticism of the official conduct of public officials.

'The Constitutional guaranty of freedom of speech and of the press, contained in the First Amendment, prohibits the imposing of criminal sanctions for truthful criticism of public officials, and criminal liability may be imposed for false defamatory criticism of the official conduct of a public official only of the statement is made with express malice, which is defined as actual knowledge that the statement is false, or a reckless disregard as to whether or not it is true or false.'

REQUESTED INSTRUCTION NO. 2

'When we speak of express malice in criminal libel case the term has a very distinct meaning apart from its ordinary use. A statement made with express malice is one made with actual knowledge that it is false or with reckless disregard of whether it is false or not. Therefore even if you find that the statement was false and was made out of hatred you must acquit the defendant unless you also find beyond a reasonable doubt that the defendant either knew the statement to be false or published it with a reckless disregard of whether it was false or not. To find the statement was vehement, caustic, or unpleasantly sharp is not enough.'

The jury's verdict found the appellant guilty and fixed his punishment 'at a fine of $4,000.00 and/or imprisonment in the penitentiary for a period of three months.' The judgment of the Court provided that the appellant should 'be fined, in accordance with the verdict returned by the jury, $4,000.00, and that he be imprisoned in the state penitentiary for a period of three months.'

The appellant contends that his conviction should be dismissed on the grounds that Arkansas Statutes, Section 41--2401 et. seq., ¹ is violative of the rights guaranteed under the First and Fourteenth Amendments to the Constitution of the United States in that the statute (a) does not require that a statement alleged to be libelous be false, (b) does not require that the allegedly libelous statement be made with actual malice when the statement refers to a public official or a matter of public concern, and (c) is so vague, general and indefinite in its terms that it fails to apprise one of the conduct proscribed. Appellant also contends that the Trial Court erred in refusing the appellant's requested instructions 1 and 2 above set out and that the Trial Court erred in entering judgment and pronouncing sentence on the jury's verdict.

The appellee contends (a) that the appellant's requested instructions 1 and 2 correctly states the constitutional limitation on a prosecution for criminal libel; (b) that the Trial Court's refusal to give instructions requested by the appellant resulted in the statute being unconstitutionally applied to the appellant; and (c) that this case should be reversed and remanded for a retrial. The appellee contends that 'a judicial restriction of the statutory scheme in compliance with the holdings of the United States Supreme Court will avoid the necessity of striking the statute in question as unconstitutional, and then the statute will have only been unconstitutionally applied to the appellant.'

Appellant's requested instructions 1 and 2 above set out follow the rule established by the U.S. Supreme Court in Garrison v. Louisiana, 379 U.S. 64, 78, 85 S.Ct. 209, 217, 13 L.Ed.2d 125 (1964). There the Court held that the Louisiana defamation statute was invalid under the First and Fourteenth Amendments to the Constitution of the United States. In so holding the Court applied the rule laid down in a civil libel case brought by a public official, New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In Garrison the U.S. Supreme Court held that the Louisiana defamation statute was unconstitutional because it directed punishment for true statements made with 'actual malice', contrary to the rule laid down in New York Times, and in addition:

'The statute is also unconstitutional as interpreted to cover false statements against public officials. The New York Times standard forbids the punishment of false statements, unless made with knowledge of their falsity or in reckless disregard of whether they are true or false. But...