Bell v. State
| Citation | 31 Tenn. 42 |
| Court | Supreme Court of Tennessee |
| Decision Date | 30 September 1851 |
| Parties | BELL v. THE STATE. |
Bell was indicted in the circuit court of Blount county for the utterance of grossly obscene language “in public and in hearing of divers citizens,” the character and precise nature of which are indicated by the opinion. At the September term, 1850, Luckey, judge, presiding, there was a verdict of guilty, and judgment accordingly, and an appeal in error.
Jno. R. Nelson, for Bell. An indictment for words spoken, where the words themselves constitute and are the gist of the offence, except for blasphemy, is without precedent, and cannot be maintained.
But, if it can be, the same strictness of proof as to the words used is required, as in cases of libel. Whart. Cr. Law, 88. The words spoken must be set out exactly as spoken, and cannot be charged according to their substance, and the words so charged or words of precisely the same meaning, without the help of any implication or intendment, must be proven.
Attorney-General, for the State.
The plaintiff in error was indicted and convicted in the circuit court of Blount for the utterance of certain grossly obscene words in public and in the hearing of divers persons, in the town of Louisville in said county. The different words alleged to have been spoken are set forth in three different counts. This was necessary to the validity of the indictment, but we omit to repeat them here because of their extremely vulgar and offensive character. It is sufficient to state that they relate to acts of criminal intercourse, alleged by the defendant to have taken place between him and the daughters of Abraham Hartsell, and to a loathsome disease, said by the defendant to have been contracted by him from the wife of Hiram Hartsell.
Two questions are presented for our determination: First, Is the utterance of obscene words in public an indictable offense? And, if so, secondly, Are the words proved sufficient to support the charges in the indictment?
Upon the first point the argument for the plaintiff in error rests upon the narrow and unsubstantial ground that no precedent or adjudication has been found in support of such an indictment. Admitting this to be true, for the present, what does it establish?
If the case stated in the indictment falls within the operation of clear, well-defined, and well-established principles of law, is it to be urged against the maintenance of this prosecution that no similar case has heretofore occurred calling for the like application of such principles? Surely not at this day. Are not innumerable instances to be found in the modern reports, both of England and America, in which the liberal, enlightened, and expansive principles of the common law have been adapted and applied to new cases, for which no precedents were to be found, so as to meet the ever-varying condition and emergencies of society? And this must continue to be so, unless a stop be put to all further progress of society; and unless a stop be also put to the further workings of depraved human nature in seeking out new inventions to evade the law.
What, then, are the well-established principles of the common law applicable to the present case?
The distinguished commentator of the laws of England informs us that upon the foundations of the law of nature and the law of revelation all human laws depend. 1 Bla. Com. 42. The municipal law looks to something more than merely the protection of the lives, the liberty, and the property of the people. Regarding Christianity as part of the law of the land, it respects and protects its institutions, and assumes likewise to regulate the public morals and decency of the community. The same enlightened author (1 Bla. Com. 124) distinguishes between the absolute and relative duties of individuals as members of society. He shows very clearly that, while human laws cannot be expected to enforce the former, their proper concern is with social and relative duties. Municipal law being intended only to regulate the conduct of men, considered under various relations as members of civil society; hence he lays it down that, however abandoned in his principles or vicious in his practice a man may be, provided he keeps his wickedness to himself and does not offend against the rules of public decency, he is out of the reach of human laws. But, says the learned writer, if he make his vices public, though they be such as seem principally to affect himself--as drunkenness, or the like--they then become, by the bad example they set, of pernicious effect to society; and, therefore, it is then the business of human laws to correct them. See, also, 4 Bla. Com. 41, 42.
It is certainly true that in England many offences against good morals and public decency, if committed in private, belong properly and exclusively to the ecclesiastical courts. But it is equally true that whenever they become public, so as thereby to become of pernicious example or offensive to public morals and decency, they fall within the proper jurisdiction of the temporal courts.
In the case of The King v. Delard et al., 3 Burr, 1438--which was an information for conspiracy for putting a young girl into the...
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State v. Marshall
...conviction, the Court held that the evidence supported the charge that the defendant was "guilty of lewdness." Id. at 204. In Bell v. State, 31 Tenn. 42 (1851), the defendant was indicted and convicted for "the utterance of certain grossly obscene words in public" that "relate to acts of cr......