People v. . Tylkoff , 212 N.Y. 197 ( 1914 )

While I concur in the decision that the judgment must be reversed because of error in the charge of the trial judge, I desire to dissent from the conclusion that the indictment does not charge an offense.

Section 43 of the Penal Law enacts that "A person who wilfully and wrongfully commits any act * * * which openly outrages public decency, for which no other punishment is expressly prescribed by this chapter, is guilty of a misdemeanor."

The defendant was accused under this provision by an indictment charging that "at a public place, to wit: At Heath's Hall at Mineville * * * at a public meeting then and there being held in said Hall, (he) did, wilfully, maliciously, unlawfully and openly outrage public decency in that * * * at the time place aforesaid, in the presence and hearing of many and divers persons there assembled * * * (he) did speak of and concerning one Marta Barkowska * * * `she is a whore.'"

While the conviction has been unanimously affirmed, and thereby the consideration of the evidence offered under the indictment withdrawn from us, the principal features of the testimony may be stated for the better understanding of the legal questions which do survive.

A strike had been inaugurated at or near the place mentioned in the indictment, and public meetings of the strikers and of those interested in the strike were held in public halls. The defendant was a strike leader who was urging the maintenance of the strike. The woman concerning whom the words complained of were spoken, on the contrary, was advising a return to work. It was at one of these meetings that the defendant is charged with having committed the act set forth in the indictment, there being a sharp issue of fact as to whether he did use any such language.

In urging that the indictment does not sufficiently charge any crime, it is in the first place argued, at least by some of my associates, that the word "act" in the statute does not include conduct largely consisting of words, and that, therefore, the alleged misconduct of the defendant is not covered by its provisions.

We are required to construe the words in this statute not strictly but according to their fair import (Penal Law, § 21), and it seems to me plain that unless their interpretation is governed by some special consideration the language is broad enough to cover the conduct of one who should arise in a public gathering and proceed to utter foul and indecent language. Such a transaction as an entirety would be comprehended within the meaning of the word "act" interpreted according to its fair import.

But it is said that there is a special consideration which forbids us to give to the word "act" a meaning which will include conduct largely made up of language. This special reason, it is continued, is found in the fact that the law has differentiated slander and libel, and whereas it has made the latter indictable it has not made the former criminal, and it is argued that the construction now proposed would reverse this policy and make slander an indictable offense. It seems to me that this reasoning misinterprets the purpose of this statute. If its application to such an occurrence as that described in the present indictment was to reverse long-established law and make slander an indictable offense, we might very well hesitate to work such a revolution if possible to avoid it. But in my opinion the element of slander has no necessary connection with the purpose or enforcement of this statute, and if it has happened that the language complained of is slanderous of somebody that is an immaterial incident. The purpose of the statute is not to punish slander but to punish public indecency, and it requires no argument to demonstrate that language which is intensely slanderous may not be indecent at all, and, conversely, that language which is just as indecent as possible may not involve any element of slander. In the present case the inquiry is not whether a certain woman has been slandered but whether public decency has been outraged.

When the statute is thus construed in respect of its proper purpose I see no reason why it should be limited to physical acts, and conduct composed in whole or part of words be excluded from its operation. One class of conduct may be just as indecent and offensive as the other. It seems to me quite immaterial whether a person, for instance, is guilty of vulgar and offensive actions and physical display or whether he describes such things by vile and expressive language. The statute is in the interest of decent conduct and for the protection of well-behaved people from the offensive conduct of others and it ought to receive a liberal application.

It is also suggested that it will be difficult to determine in any particular case whether language is indecent. But it will be no more difficult to do this than to determine whether acts are of such a character. At the outset the class of conduct whether words or acts which may come under review under this statute is greatly limited by the qualification that they must "openly" outrage "public" decency.

It is true that there is no statutory or other precise test by which to determine what constitutes decency or indecency either of words or acts. Webster defines "decent" as something which is "becoming; fit; decorous; proper; seemly; as, decent conduct; decent language;" also as "Free from immodesty or obscenity; modest."

The Century Dictionary defines indecency as "That which is indecent or unbecoming; language, or behavior, or pictorial presentation, etc., that violates modesty or decorum; specifically, that which is obscene or grossly vulgar."

Bouvier says that indecency is "an act against good behavior and just delicacy."

It is obvious that the question whether a given act or word is indecent must within limitations be tested by the prevailing common judgment and moral sense of the community where it is performed or uttered (People v. Muller, 96 N.Y. 408), and further that such determination may be largely influenced by the particular circumstances and conditions under which a given act occurs. For instance, in a public meeting called to decide whether a particular woman should be appointed a policewoman or social worker it might be entirely appropriate and proper truthfully to disclose concerning her that she was an improper person for such appointment because of the bad character indicated by the word set forth in the present indictment and which while perhaps somewhat harsher in sound is entirely synonymous with other words frequently used in public discussion or reports without any resulting thought of an affront to public decency. On the other hand, without excuse or reason to use such language of a woman in a public and mixed gathering assembled to consider no subject which made the same relevant or appropriate might properly be found to be an outrageous and indecent act. I cannot see that it would be any more difficult for a jury to determine whether the element of indecency existed in the case of words than in the case of an act, or any more difficult to determine whether either was indecent than to decide whether a given act was negligent.

The sufficiency of the indictment is only challenged by the motion in arrest of judgment, the demurrer having been withdrawn after the decision overruling it. No question is raised concerning the admission of any evidence, and in my opinion the indictment sufficiently stated an offense under the statute. (People v. West, 106 N.Y. 293; People v. Williams,149 N.Y. 1.)

CHASE and MILLER, JJ., concur with WILLARD BARTLETT, Ch. J.; COLLIN, J., concurs with WERNER, J.; HISCOCK, J., reads an opinion for a new trial, and HOGAN, J., concurs.

Judgment of conviction reversed, etc.