State v. Appling

Decision Date31 July 1857
Citation25 Mo. 315
PartiesTHE STATE, Respondent, v. APPLING, Appellant.
CourtMissouri 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. (4 Black. Com. 64; 1 Russell on Crimes, 4, 5, 6; Wharton's Crim. Law, 805; Bell v. State, 1 Swan, 42; Gingham & Ligan v. State, 2 Yerg. 589; Commonwealth v. Sharpless, 2 Serg. & Raw. 91; Barker v. Commonwealth, 19 Penn. 412.)

RYLAND, Judge, delivered the opinion of the court.

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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14 cases
  • United States v. 12 200 Ft Reels of Super 8Mm Film 8212
    • United States
    • U.S. Supreme Court
    • January 19, 1972
    ...(signs depicting 'monster'); Commonwealth v. Holmes, 17 Mass. 336 (1821) (John Cleland's Memoirs of a Woman of Pleasure); State v. Appling, 25 Mo. 315, 316 (1857) (utterance of words 'too vulgar to be inserted in this opinion'); Commonwealth v. Sharpless, 2 Serg. & R. 91, 92 (Pa. 1815) ('le......
  • City of Farmington v. Fawcett
    • United States
    • Court of Appeals of New Mexico
    • June 30, 1992
    ...Missouri had long recognized the state could prohibit obscenity. State v. Van Wye, 136 Mo. 227, 37 S.W. 938 (1896); State v. Appling, 25 Mo. 315 (1857). Another prominent convention leader, Charles Springer, had come from Iowa to practice law near Cimarron. Cline, supra, at 35. Iowa, too, h......
  • State v. Maynard
    • United States
    • Oregon Court of Appeals
    • May 31, 2000
    ...that is perhaps odd to modern sensibilities—for "the chastity of our records." Sharpless, 2 Serg. & Rawle at 103; see also State v. Appling, 25 Mo. 315, 317 (1857) ("Our respect for the chastity of the records of our court will not suffer the outrageously vulgar words that were spoken and s......
  • State v. Parker
    • United States
    • Missouri Court of Appeals
    • September 1, 1987
    ...128, 130 (Mo.App.1954). In accordance with this purpose and the common law principles governing indecent exposure, see e.g., State v. Appling, 25 Mo. 315, 317 (1857) (quoting 4 W. Blackstone, Commentaries 65, note), it had been held under the former statutes that it was essential that someo......
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