State v. Appling
Decision Date | 31 July 1857 |
Citation | 25 Mo. 315 |
Parties | THE STATE, Respondent, v. APPLING, Appellant. |
Court | Missouri Supreme Court |
1. The utterance in public of words grossly obscene, in such a manner as to outrage decency and be injurious to public morals, though not an open and notorious act of public indecency within the statute, is a misdemeanor at common law, and punishable as such.
Appeal from Laclede Circuit Court.
F. P. Wright, for appellant.
The indictment is bad. Merely using vulgar and obscene words is not indictable under the statute. To constitute the offense there must be some open and notorious act of public indecency. But if the mere use of language is sufficient, the indictment is still bad. Neither charge is sufficiently laid. (Dameron v. The State, 8 Mo. 496.)
Ewing (attorney-general), for the State.
I. The offense charged is within the intention and mischief of the statute, and a reasonable construction of the law embraces the offense charged within its provisions consistently with the rule that penal statutes are to be strictly construed. The intent of the Legislature in the construction of penal statutes is not to be disregarded. (Smith's Commentaries, 840-3.) But if the offense charged is not indictable under the statute, it is at common law.
The only question in this case is raised upon the indictment. The defendant was convicted and judgment rendered against him for the fine; he moved in arrest of judgment; his motion being overruled, he appealed to this court. The indictment is not good under any of the provisions in our Criminal Code; but we consider the offense therein charged to be an offense indictable at common law, and that the indictment is good as a common law indictment. The charge is “that the defendant did, on the 25th of August, A. D. 1856, at the county of Laclede, in a certain large assembly of males and females in said county, and in the hearing of said assembly of persons, unlawfully, wickedly and scandalously use vulgar, obscene and indecent language, by then and there asking some of the males, etc. [here the questions are inserted in the indictment, which are too vulgar to be inserted in this opinion], and was then and there guilty of open and notorious acts of public indecency, grossly scandalous, to the manifest corruption of the morals of said assembly, contrary,” etc.
We have no statute punishing a person for the use of vulgar, indecent and obscene words in public. There has not been an attempt to legislate on this particular offense. It was an offense at common law, because it was against good morals--against public decency. Russell, in his Treatise on Crimes (1 vol., p. 46), says: “And it seems to be an established principle that whatever openly outrages decency, and is injurious to public morals, is a misdemeanor at common law.” “The common law,” said Judge White, in the case of Gresham & Ligan v. The State, 2 Yerger, “is the guardian of the morals of the people and their protection against offenses notoriously against public decency and good morals.” Blackstone lays it down that “any grossly scandalous and public indecency is indictable and punishable in the...
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