88 S.W.2d 104 | Tex. Crim. App. | 1935
Lead Opinion
These are original habeas corpus proceedings. Ex parte Harry McCormick and E. M. Pooley, No. 17,958, and Ex parte George Cottingham, Ed. Rider, Max Jacobs and Frank L. White, No. 17,959, have been consolidated by an order of this court, and will be considered together.
On July 23, 1935, there was in progress in the District Court of Brazoria County, Texas, the trial of Clyde Thompson on an indictment charging him with the murder of Everett Melvin. Ed. Ebers and Raymond Hall were each charged by separate indictments pending in said court with the same murder. After the jury had been selected for the trial of Thompson, the Honorable M. S. Munson, judge before whom the case was on trial, instructed relators McCormick, Rider and White, all of whom were newspaper reporters, not to publish the testimony in the Thompson case until after the trial of the companion cases of Ebers and Hall, both of which were set for trial at later dates during the term. The reasons assigned for such instruction were that the evidence adduced at Thompson's trial *459 might have a tendency to disqualify prospective jurors in the companion cases; that such publication might necessitate a change of venue in said cases; and that the publication of the testimony would have a tendency to prejudice the jurors against Hall and Ebers. The reporters communicated the court's instruction to their respective newspapers. Relator Cottingham, who was editor of the Houston Chronicle, relator Jacobs, managing editor of the Houston Post, and relator Pooley, managing editor of the Houston Press, each refused to refrain from publishing said testimony. On July 26, 1935, the court prepared and signed a written order directing relators to refrain from publishing said testimony. Relators declined to obey the court's instruction, and published in their respective newspapers a true and impartial statement of the evidence adduced during the trial of Thompson. After being duly cited and given a hearing, relators were adjudged to be guilty of contempt of court and assessed fines.
It appears to us that respondent unduly stresses the tendency of accurate newspaper reports of public trials to embarrass the administration of justice. Under our statute opinions formed from reading newspaper accounts may not disqualify a juror from sitting in a particular case. In Parker v. State,
The law throws adequate safeguards around the accused. The trial judge is empowered to order a change of venue on his own motion. The accused may have a change of venue upon making the showing required by the statute. Great latitude is accorded for determining upon voir dire examination whether jurors entertain such opinions touching the merits of the case as will influence their action in finding a verdict. On motion for a new trial upon a showing that a prejudiced juror was impaneled without fault on the part of the accused a new trial will be awarded, or else upon appeal to this court the judgment of conviction will be reversed. The danger that an accused will suffer conviction at the hands of a prejudiced jury would appear to be too remote to warrant the trial court in concluding that an accurate and impartial publication of the proceedings of a public trial would tend to prejudice the rights of others to be later tried. But if it be conceded that a speedy trial by an *461 impartial jury in the county where the indictment had been returned would not likely be had as the result of the publicity given to the proceedings in another case, it would not follow that the exercise of the constitutional privilege of liberty of speech and of the press should be abridged.
The eighth section of the Bill of Rights reads, in part, as follows: "Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press."
The language of this provision makes plain its purpose to prevent previous restraints upon publication. The privilege of writing one's views is accorded and protected, and at the same time accountability to the law is demanded for the abuse of the privilege. See Ex parte Tucker,
It is generally conceded that liberty of the press means immunity from previous restraints or censorships. Touching this conception of the immunity extended by the first amendment to the Federal Constitution, it is said in Near v. Minnesota,
In Ex parte Foster, 44 Tex.Crim. Rep.,
We are of the further opinion that, under the holding in Foster's Case, it cannot be said that realtors abused their constitutional privilege. It is conceded that they published a true and impartial statement of the testimony adduced during the trial of Thompson, the proceedings of which were public pursuant to the command of the tenth section of the Bill of Rights. In the nature of things, the proceedings of public trials constitute news which newspapers have the right to publish in informing the public of current events.
The relators are ordered discharged.
Relators ordered discharged.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Addendum
The respondents contend in their motion for rehearing, as understood, that inasmuch as the learned trial judge entertained the opinion that the publication of the testimony given upon the trial was reasonably calculated to impede or interfere with the due administration of justice, the relators were culpable. The good faith of the trial judge in entering the order is conceded, but his authority to punish the relators for refusing to abide his order is denied.
The decision in the present appeal advances no new principle or practice. The conclusion of this court, as expressed in the original opinion, is founded upon the Bill of Rights in which there is guaranteed the freedom of speech and liberty of the press. A speedy public trial by an impartial jury is guaranteed to persons accused of crime. The conclusion of this court is further supported by precedents, notably, the decision in Ex parte Foster, 44 Tex.Crim. Rep., to which reference is made in the original opinion. Emphasis, if needed, is found in other decisions of this court upon a like subject to that involved in the present appeal. Among such cases is Willis v. State,
The statute, Art. 560, C. C. P., vests the trial judge with power and wide discretion in the matter of change of venue. Formerly, if a proposed juror stated that he had formed an opinion from any source, his disqualification followed as a matter of law. *464
"Now, by express statute, an opinion so based is not a disqualification if the juror is willing, and believes himself able, to put aside any preconception of the case, and if the court sees no reason to doubt this." (Tex. Jur., Vol. 26, p. 767, sec. 203).
See Willis v. State, supra, and also Parker v. State,
A further discussion of the motion for rehearing is pretermitted with the statement that the conclusion reached and stated in the original opinion has the concurrence and sanction of the members of the Court of Criminal Appeals.
The motion is overruled.
Overruled.