Redd v. State

• Decision Date: 06 April 1910
• Docket Number: 2,393.
• Citation: 67 S.E. 709,7 Ga.App. 575
• Parties: REDD et al. v. STATE.
• Court: Georgia Court of Appeals

67 S.E. 709

7 Ga.App. 575

REDD et al. v. STATE.

No. 2,393.

Court of Appeals of Georgia

April 6, 1910

Syllabus by the Court.

In the expression, "any notorious act of public indecency tending to debauch the morals," as used in Pen. Code 1895, § 390, the word "indecency" has a somewhat narrower meaning than it has in ordinary popular speech; yet it is broader in meaning than the phrase "exposure of the person." A criminal public indecency may be committed without any improper exposure of the human body.

What is decent and what is indecent are determined by the sensibilities and moral standards of a people, as evolved from generation to generation along with their civilization. What is decent in one period may be indecent in another, and vice versa.

Whether an act is decent or indecent depends upon the time, the place, and all the circumstances surrounding its commission including the intention, actual or implied, of the actor.

When by general concensus of the people and practical unanimity of public opinion an act tending to debauch the morals is understood to be offensive to the common instincts of decency if done under particular circumstances, that act, when so done, is in contemplation of law a "notorious act of indecency."

The barrier which has been erected by social decorum between persons of different sexes, and which prevents the one from intentionally and unnecessarily intruding upon the attention of the other the sexual act and all other things directly suggestive of it, is a fundamental of decency well recognized and understood by the people of this state at the present time. A public and intentional or wanton violation of the dictates of decency in this respect is an act of "public indecency," within the purview of section 390 of the Penal Code of 1895.

For a man intentionally or wantonly to cause a bull and a cow to engage in sexual intercourse upon a public highway, knowing that a woman and a number of children were so situated that they could hardly fail to see the spectacle, and that they would likely be offended by it, is an act of criminal notorious public indecency.

Error from City Court of La Grange; Frank Harwell, Judge.

Nick Redd and others were convicted of open lewdness, and bring error. Affirmed.

F. M Longley, for plaintiffs in error.

Henry Reeves, Sol., Hutton Lovejoy, and E. A. Jones, for the State.

POWELL J.

The defendants were indicted under the Penal Code of 1895, section 390, which provides, among other things, that "any person who shall be guilty of open lewdness, or any notorious act of public indecency, tending to debauch the morals," shall be punished as for a misdemeanor. The charge is that the defendants were guilty of a notorious act of public indecency tending to debauch the morals, in that they in a public place, adjacent to a highway and in the presence of a lady and several children, caused a bull and a cow to copulate. The proof was that these two men, having been intrusted with a cow that was in heat, for the purpose of taking her to the bull, which was confined in a pasture adjacent to the public road, put the cow in the pasture, and tied her to the fence next to the road and called the bull to her there. The copulation between the animals thus took place publicly, though there was a branch and a thicket about 100 feet away in which the act could have been done privately. About 30 feet away, and just across the road, were a woman and several children. The defendants denied seeing these persons, but the proof was against them as to that. There was ample evidence to sustain the proposition that the defendants willfully, or at least in reckless disregard to the sensibilities of the woman and the children, put the bull to the cow in their presence. The road seems to have been a much frequented highway, for several persons passed in vehicles while the act complained of was in progress.

The contention presented by counsel for plaintiffs in error is that no offense is charged or shown--that the phrase, "public indecency," as used in this section of the Penal Code, relates only to indecent exposure of the human person. The court has been so fortunate as to have both sides of the question ably argued before it, and we must admit that the decision of the question is not unattended with doubt. There are in this state no offenses in force by reason of the common law. In a sense, all our crimes and misdemeanors are statutory. Yet we have by statute given recognition to many offenses which were known to the common law and which have not been defined otherwise than by the use of the general terms anciently used to describe them; and, in such cases, we look to the common law for more specific definition. Public indecency was a common-law offense, included under the more general head of "indictable nuisances." What research we have been able to make as to the old English cases on the subject tends to corroborate the assertion of the distinguished counsel who, by a fortuitous combination of circumstances, appeared for the plaintiffs in error, that no case can be found at common law where a person was convicted for exhibiting or exposing any of the lower animals in the act of sexual intercourse or in any other way tending to shock the sensibilities of the spectators. Indeed, as to prosecutions for public indecency (omitting cases of the use of obscene language in the presence of females and of the exhibition of obscene and offensive prints, pictures, statuary, etc.--omitted because they are distinct offenses, not here involved), all the old cases, and nearly all the modern ones, so far as the facts have been reported, appear to be cases in which were involved exposures of the human body. It may therefore be conceded that the reported cases, considered as physical precedents, do seem to support the view presented by the plaintiffs in error.

It is true, too, that it is contrary to the genius of our law, as well as repugnant to the popular notions of juridic justice that punishable offenses should be left undefined. Intuitively, the courts find themselves seeking for and declaring, by construction, limitations in the way of definition, where the Legislature has spoken loosely. In the case of McJunkins v. State, 10 Ind. 140, 145, it was said: "The term 'public indecency' has no fixed legal meaning--is vague and indefinite, and cannot in itself imply a definite offense. And hence the courts, by a kind of judicial legislation, in England and the United States, have usually limited the operation of the term to public displays of the naked person, the publication, sale, or exhibition of obscene books and prints, or the exhibition of a monster--acts which have a direct bearing on public morals and affect the body of society. Thus, it will be perceived that, so far as there is a legal meaning attached to the term, it is different from, and more limited than, the commonly accepted meaning given by Webster [in his dictionary] to the word 'indecency."' This dictum has been widely quoted with approval by the courts and text-writers; and it may be noted that it found its way into general lexicography, for the Century Dictionary cites it in connection with the definition of the word "indecency." Yet, despite the wide currency that has been given the dictum in the McJunkins Case, despite the paucity of physical precedents to the contrary, it must be noticed by every one who has had the occasion to pursue the question that neither the courts nor the text-writers have been willing to commit themselves fully to the proposition that the limitations and definition attempted...