People v. Tylkoff
| Decision Date | 16 June 1914 |
| Citation | 105 N.E. 835,212 N.Y. 197 |
| Parties | PEOPLE v. TYLKOFF. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Third Department.
Joseph Tylkoff was convicted of a violation of the Penal Law making any act which outrages public decency a misdemeanor, and he appeals. From a judgment of the Appellate Division (145 N. Y . Supp. 1139) affirming the conviction, defendant appeals. Reversed.
Robert W. Fisher, of Mechanicville, for appellant.
Fred M. La Duke, Dist. Atty., of Keeseville, for the People.
The indictment in this case charges that the defendant at a public meeting spoke three Polish words of and concerning the complainant, signifying in English, ‘She is a whore,’ and that he thereby openly outraged public decency against the form of the statute in such case made and provided.
The statute upon which the indictment is expressly based is section 43 of the Penal Law, the portion of which it is material to consider here reading as follows:
‘A person who willfully 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 learned county judge before whom the case was tried construed the statute as applicable to the utterance of words alone; whereas it seems to me that section 43 of the Penal Law is intended to denounce and punish acts which openly outrage public decency, as distinguished from mere words.
The construction thus far given to the section, if approved by this court, may lead to the punishment of slander as a crime-a consequence which I do not believe was contemplated by the Legislature.
It is impossible to sustain this indictment unless the words ‘commit any act’ in the statute are construed broadly enough to include the utterance of a defamatory statement by word of mouth .
I am unwilling to adopt such a construction and thereby to hold that the Legislature without clearly and unequivocally manifesting an intention so to do, has thus for the first time in the history of the state of New York made mere slander-i. e., defamation by spoken words-a criminal offense.
The oral imputation of want of chastity applied to a woman did not even give her the right to recover damages in a civil suit at common law, although such right now generally exists in most of the states by virtue of the statutes expressly conferring it. If it has as yet anywhere been made a crime, that fact has escaped my attention.
‘Slander,’ says Mr. Townshend in his excellent treatise on the law of slander and libel, Townshend on Libel & Slander (4th Ed.) page 6, n.
I am convinced that section 43 of the Penal Law was designed to deal with deeds and not simply words of misconduct. Annoying language amounting to a nuisance is dealt with elsewhere in the statute. Penal Law, & 720. All that is charged or proved against the defendant here is the publication of a slander against a woman. The Legislature unquestionably possesses the power to declare that mere slander shall be deemed criminal, if it sees fit to do so; but I insist that it has not done so yet. It is not to be presumed that such a pronounced change in the criminal law would have been made in phraseology which certainly does not on its face suggest the meaning sought to be assigned to it in this prosecution.
For these reasons I think this indictment does not state facts constituting a crime. The judgment of conviction should be reversed, the indictment dismissed, defendant's bail exonerated, and the defendant discharged from custody.
The defendant was indicted, tried, and convicted as for a misdemeanor committed, it is alleged, in violation of the provisions of section 43 of the Penal Law; and the specification of the indictment is that on or about the 4th day of February, 1913, at a public meeting held in the village of Mineville, Essex county, this state, the defendant did ‘maliciously, unlawfully and openly outrage public decency’ by speaking in the Polish language of and concerning one Martha Barkowska the words, ‘Ona jest kurwa,’ which, translated into English, mean ‘She is a whore.’
The section of the Penal Law (43) upon which this indictment is founded provides that:
‘A person who willfully and wrongfully commits any act which seriously injures the person or property of another, or which seriously disturbs or endangers the public peace or health, or which openly outrages public decency, for which no other punishment is expressly prescribed by this chapter, is guilty of a misdemeanor; but nothing in this chapter contained shall be so construed as to prevent any person from demanding an increase of wages, or from assembling and using all lawful means to induce employers to pay such wages to all persons employed by them, as shall be a just and fair compensation for services rendered.’
The most casual reading of this statute at once reveals its peculiarities. It is obviously one of those ‘dragnet’ laws designed to cover newly invented crimes, or existing offenses that cannot be readily classified or defined. If there is the slightest doubt on this subject, one has only to refer to the former Penal Code (section 675), of which it was once a part, to ascertain that section 43 as it now stands is the result of a division of earlier sections and a redistribution of subjects; that is, to say the least, not palpably congruous. Even if we assume that there may be a natural and logical relation between the things which this section brands as criminal and those lawful acts which it expressly sanctions, we have still to learn, if we can, what is forbidden, and for that purpose we proceed to a closer view of the statute.
It is noteworthy that section 43 deals with acts as distinguished from words, and the reason is doubtless to be found in the collocation of interdicted subjects, and in the legislative recognition of the ancient common-law rule which has long prescribed punishment for criminal libel, but has never recognized any such thing as criminal slander. We can all readily think of many acts that would seriously injure the person or property of another; or that would endanger the public peace or health; or that would openly outrage public decency. It is not so easy to enumerate mere words or phrases which would have that general effect.
The charge is that the defendant outraged public decency at a public meeting by calling a certain woman a whore. This language was plainly slanderous of the person of whom it was used; but that, as we have observed, is not a criminal offense. For the purpose of testing the question whether it is per se an outrage of public decency to call a woman a whore a public meeting, the character and occasion of the gathering must be considered.
It is alleged that the offensive words which the defendant is charged with having used were spoken in the Polish language, and from this we may fairly infer, what is not in terms alleged, that they were addressed to an audience composed of Poles. They were spoken at a meeting held for the purpose of considering the conditions relating to a labor strike then in progress in that neighborhood, and it was the complainant's position in the strike that seems to have inspired the defamatory words uttered by the defendant. If in groping for some standard of public decency which the statute does not fix or define, we seek light in the prevailing common judgment and moral sense of the community where an act is done or words are spoken, we are no better off than we were before. What is the prevailing common judgment and moral sense of a community of Poles in respect of such an expression as is charged against the defendant? For aught we know, the Polish language may be one in which this form of expression, when made in public, is not considered so improper as to shock or outrage public decency. The trouble with this statute is that it fixes no definite standard or rule of public decency; and in the nature of things that is plainly impossible. To the extent that this statute deals with acts and language so obviously offensive to the general sense of public decency that there is really no room for discussion, the courts of criminal jurisdiction will have no difficulty in applying and enforcing its provisions. In all other cases the courts...
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