Abbott v. State

• Decision Date: 14 November 1931
• Citation: 43 S.W.2d 211,163 Tenn. 384
• Parties: ABBOTT v. STATE.
• Court: Tennessee Supreme Court

43 S.W.2d 211

163 Tenn. 384

ABBOTT v. STATE.

Supreme Court of Tennessee.

November 14, 1931

Appeal from Criminal Court, McMinn County; John J. Blair, Judge.

Walker Abbott was convicted of an offense, and he brings error.

Affirmed.

The Attorney General, for the State.

SWIGGART J.

Abbott has appealed from a conviction for misdemeanor.

The indictment charges common-law lewdness, in that Abbott placed certain articles, suggestive of sexual intercourse, upon a Christmas tree, addressed to a young woman, "publicly scandalously, wickedly and corruptly, to the manifest corruption of the public morals, and to the evil example of all others in like cases offending."

The argument of plaintiff in error that this indictment charges no indictable offense overlooks the early decisions of this court on the subject. After discussing pertinent sections of Blackstone, the court, in Grisham v. State, 10 Tenn (2 Yerg.) 589, 596, said: "Thus we find the common law (independent of any statutes) is the guardian of the morals of the people, takes cognizance of offences against good manners. *** The result of this view of the law is, that acts or conduct notoriously against public decency and good manners constitute an offence at common law." And, with regard to the element of notoriety necessary to constitute the offense, the court continued: "Now, what is the gist of the above prosecutions? It is this, that the act or acts or particular conduct charged, be notorious and against good manners, not that they should have been committed in the public streets, or elsewhere exposed to the view of divers spectators; such an exhibition as this, is not necessary to satisfy the term notorious, and portray its character and import. The requisition of the term notorious, or notoriously, in the constitution of an offence of the nature spoken of, is sufficiently answered, if the act is done in such a manner, or under such circumstances as necessarily to become public, or generally known in the neighborhood."

The definition of lewdness given by Blackstone is that it may be committed "either by frequenting houses of ill fame," or "by some grossly scandalous and public indecency." 4 Bl. 64.

In Britain v. State, 22 Tenn. (3 Humph.) 203, the accused was found guilty of this offense, for permitting his slave to go about the country in a state of seminakedness.

Of statutes which make open and gross lewdness a crime, without...