Dillard v. The State Of Ga.

• Decision Date: 30 June 1870
• Court: Georgia Supreme Court
• Parties: JAMES T. DILLARD, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.

41 Ga. 278

JAMES T. DILLARD, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, June Term, 1870.)

Criminal Law. Obscene Language. Before Judge Andrews. Oglethorpe County. January, 1870.

Dillard was charged before a Justice of the Peace with having "used obscene and vulgar language in the presence of a female, without provocation, " in that "without provocation" he "asked Mary S. Sanders (the wife of William H. Sanders), to go to bed with him, the said James T. Dillard, " *and said to her, at the same time, that she was "a God-damned liar." Waiving indictment by a grand jury, Dillard was tried and found guilty. What the evidence was does not appear. It was said in argument that when Dillard asked her to "go to bed" with him she called her husband and told him of it in Dillard\'s presence, and then he used the other words. Dillard\'s counsel moved to arrest judgment upon the ground that said words, as charged, were not "obscene and vulgar language, " as is contemplated and made penal by section 4306 of the Revised Code of Georgia. The Justice overruled the motion and fined Dillard $100 and costs, and ordered him to jail for three months if the fine and costs were not paid. Without a formal certiorari, by consent, the motion in arrest of judgment was submitted to Judge Andrews for revision and reversal. He affirmed the decision of the Justice, and that is assigned as error.

J. D. Matthews for plaintiff in error, cited Revised Code, section 4, as to construction of Statutes. As to the meaning of "obscene and vulgar: " 2 Ch. Criminal Laws, 19, 20, 21; 1 Swann's (Tenn.) R., 42; 19 Harris' (Penn.) R., 416; 17 Mass., 336; Whar. Cr. L., Par. 351, 2548; 1 Bish. Cr. L., Par. 379.

W. G. Johnson, for the State, as to the meaning of obscene and vulgar, cited Webster's Dictionary; Trench on Words, 58 to 71; Schlegel's Lectures on Literature, 7; Johnson's Eng. Classics, title, Bucaccio Bono L. Die.; 4 Bl. Com., 64 and 65, and Notes; 3 Wharton's Cr. L., sec. 2400; 1 Bish. Cr. L., sec. 379; 3 St. Trials, 519; 3 Burrows, 1438; 1 Rus. on Cr. 326; Bou. L. Dic. "Indecency: " 1 Swann (Tenn.) R., 42; 17 Mass. R., 336; 20 Peck, 216. 217; 7 Harris' (19 Penn.) R.. 412; and said the judgment ought not to be arrested, because the jury found Dillard guilty, they being judges of the law and fact.

*McCAY, J.

There was no indictment in this case. The defendant, rather than await his trial before the Superior Court, waived indictment, and even a written accusation, and demanding a jury, was tried under the Act of 1868, on the proof. His only ground of defense is that the words proven are not obscene and vulgar words, in the sense of section 4306 of the Code.

We cannot think that the Legislature was aiming solely at the words, without reference to the thoughts or idea the words are intended to convey. There is not a single word in the language, however course, low or vulgar, that may not be and is not often used to convey proper and decent ideas, and it is a mawkish and really an indelicate and immodest sensitiveness that blushes at a word which may be used obscenely, but which the occasion and the context shows not to be so used. Words get their point and meaning almost entirely from the time, place, circumstances and intent with which they are used, and it seems to us a very unfair interpretation of this clause of the Code to say, that it is directed simply against the use of certain words which are by common consent banished from decent society. If there are any such words in our language they are very few, and as we have said, even they are only obscene and vulgar accordingly as they convey obscene and vulgar ideas.

This statute does not stand upon the footing of statutes against public indecency. Its object is not to keep pure the public morals. It is to be found in that chapter of the Code which punishes private wrongs, and forms a part of the same clause which makes it a penal offence to use opprobrious and abusive language to another. It is intended to protect females from insult; to furnish to the friends of a female whose modesty has been unlawfully shocked, or whose feelings have been wounded, by the use in her presence of obscene and vulgar language, some other remedy than that which nature dictates, to-wit, club law. And the statute is to be construed and understood in the light of its object. *What higher insult to a virtuous woman can be conceived of than the language used in this case?

It is in our judgment not only obscene and vulgar in the idea which it conveys and in the insult which it includes, but, we must say, that the very terms used are obscene and vulgar. It is not even wrapped up in decent words. It would be a course and vulgar phrase among vicious and vulgar people. It is not only obscene and vulgar in the thought it suggests, but it is obscene and...