State v. Christine

• Decision Date: 09 November 1959
• Docket Number: No. 44327,44327
• Citation: 118 So.2d 403,239 La. 259
• Parties: STATE of Louisiana v. Lilly CHRISTINE, alias 'Cat Girl'.
• Court: Louisiana Supreme Court

Page 403

118 So.2d 403

239 La. 259

STATE of Louisiana v. Lilly CHRISTINE, alias 'Cat Girl'.

No. 44327.

Supreme Court of Louisiana.

Nov. 9, 1959.

On Rehearing Feb. 15, 1960.

Rehearing Denied March 21, 1960.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Richard A. Dowling, Dist. Atty., Leonard Dreyfus, Asst. Dist. Atty., New Orleans, for appellant.

Robert Weinstein, Fred Bronfin, Sylvan J. Steinberg of Rittenberg, Weinstein & Bronfin, New Orleans, for appellee.

HAMLIN, Justice.

The State of Louisiana appeals from a judgment of the trial court holding Paragraph Three of LSA-R.S. 14:106 ¹ unconstitutional, null and void, maintaining defendant's motions to quash and her demurrers to the bill of information filed, and discharging defendant without date.

Lilly Christine, also known as the "Cat Girl," was charged by bill of information with a violation of LSA-R.S. 14:106(3), "Obscenity," in that--

"* * * on the sixteenth day of July in the year of our Lord, one thousand nine hundred and fifty-eight * * * while in a public place and in a public manner, did wilfully, unlawfully and intentionally perform an act of lewd and indecent dancing, grossly scandalous, and tending to debauch the morals and manners of the people, * * *"

In her demurrers and motions to quash, ² along with other legal issues, the defendant contended that Paragraph Three of LSA-R.S. 14:106, supra, under which she was charged, was unconstitutional because the terms 'Performance by any person * * *, in any public place or in any public manner, of any act of lewdness or indecency, grossly scandalous and tending to debauch the morals and manners of the people' were too broad and indefinite to inform the defendant of the nature of the charge against her and whether or not her conduct constituted a violation of the subsection of the statute. (Italics ours.)

In holding Paragraph Three of LSA-R.S. 14:106 unconstitutional, null, and void, the trial judge stated:

"In the case at bar, L.S.A.-R.S. 14:106, (obscenity), Par. 3, makes it a crime to perform in any public place or in any public manner, 'any act of lewdness or indecency' without describing the particular type, kind, character, conduct, or purpose sought to be reached by the legislature in adopting the statute."

Therefore, to properly determine the constitutionality vel non of Paragraph Three of LSA-R.S. 14:106, supra, we find it necessary to thoroughly and minutely analyze its context, applying our findings to the instant bill of information. ³

Firstly, although elementary, we pose the question, "Is a dance a performance?"

"In a different sense, a 'performance' is a representation on the stage or before an audience or spectators; an exhibition of feats; any entertainment at a place of amusement." 70 C.J.S. Performance p. 451. Cf. Remick & Co. v. American Automobile Accessories Co., D.C., 298 F. 628, 6 Cir., 5 F.2d 411; 269 U.S. 556, 46 S.Ct. 19, 70 L.Ed. 409.

"Performance' is 'a formal exhibition of skill or talent, as a play, musical program, etc.; show." Webster's New World Dictionary of the American Language, College Edition.

"Dance"--v.t. "1. to take part in (a dance); perform (a dance)." Webster's New World Dictionary of the American Language, College Edition.

"Dance"--n. "1. rhythmic movement of the feet or body, ordinarily to music. 2. a particular kind of dance, as the waltz, tango, etc. 3. the art of dancing. * * * 7. rapid, lively movement." Webster's New World Dictionary of the American Language, College Edition.

"Dancer"--"One who dances; specif., a professional performer of dances." Webster's New International Dictionary, Second Edition, Unabridged.

We conclude that dancing is included within the meaning of Performance; the above authorities show clearly that a performance is very well and generally understood to comprehend a dance, a song, a recitation, an act, a play, a pantomime. The question posed, supra, is answered affirmatively.

Webster's New World Dictionary defines the adjective "Public" as follows: "of, belonging to, or concerning the people as a whole; of the community at large." The syllabus of Nelson v. City of Natches, 197 Miss. 26, 19 So.2d 747, correctly states:

"A 'public place' within municipal ordinance making it a criminal offense for any person to profanely swear or curse or use vulgar or indecent language in any public place within corporate limits, must be considered as one wherein by general invitation members of the public attend for reasons of business, entertainment, instruction or the like, and are welcome so long as they conform to what is customarily done there."

We find, as the trial judge did in the instant case, that:

"The terms 'public place' and 'public manner,' as used in the statute and the bill of information, have a fixed and definite meaning, and require no further definition as to their meaning. * * *'

Having found that a performance includes a dance, we have now to determine whether the legislature sufficiently described the kind or type of performance done in any public place or in any public manner which it intended to reprobate and punish when it employed the terms "any act of lewdness or indecency, grossly scandalous and tending to debauch the morals and manners of the people." (Italics ours.)

"* * * It is sufficient to say that a criminal statute, in order to be valid and enforceable, must define the offense so specifically or accurately that any reader having ordinary intelligence will know when or whether his conduct is on the one side or the other side of the border line between that which is and that which is not denounced as an offense against the law." State v. Kraft, 214 La. 351, 37 So.2d 815, 817.

"The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a gunuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision." LSA-R.S. 14:3.

City of Shreveport v. Wilson, 145 La. 906, 83 So. 186, ⁴ 188, is not apposite, but therein we said:

"* * * 'Lewdness' is not synonymous with 'concubinage.' 'Lewd' means lustful or lascivious. See Words and Phrases, (Lewd). * * *"

Webster's New World Dictionary of the American Language, College Edition, defines "Lewd" as "1. indecent; lustful; unchaste; lascivious." It follows that "Lewdness" means "indecency; lustfulness; unchasteness; lasciviousness."

"* * * It is true that the word 'lewd', when used alone is of a very broad scope. It is defined by Webster's New International Dictionary as 'lay; * * * wicked; lawless; bad; vicious; worthless; base' but it is also defined to be 'lustful; libidinous; lascivious; unchaste * * *.' And the word 'lascivious' is defined as 'wanton; lewd; lustful * * * tending to produce voluptuous or lewd emotions.' Hence, it is seen that when the term 'lewd' is associated with the word 'lascivious' it connotes actions or gestures of a lustful and lecherous nature." State v. Saibold, 213 La. 415, 34 So.2d 909, 911.

In State v. Kraft, 214 La. 351, 37 So.2d 815, 816, we held that there was nothing in the context of the second paragraph of Article 106 of the Criminal Code to give the word "indecent" a definite meaning, and stated:

"The word 'indecent,' standing alone has many different meanings, according to the standard of the individual using or defining the word. In Webster's New International Dictionary the word is defined as 'unbecoming or unseemly'; 'indecorous, as indecent haste'; 'morally unfit to be seen or heard'; 'offensive to modesty and delicacy, as indecent language'; 'immodest'; 'impure'; 'gross'; 'obscene.' "

We believe that the words "indecency" or "lewdness" employed in LSA-R.S. 14:106(3) do have a definite meaning, because the "lewd indecent act" has to be "grossly scandalous and tending to debauch the morals and manners of the people." By being "grossly scandalous," we take the state to mean that the moral feelings of the community have to be grossly shocked and offended.

In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498, the United States Supreme Court approved the following charge given to the jury by the trial judge:

"The test in each case is the effect of the book, picture or publication considered as a whole, not upon any particular class, but upon all those whom it is likely to reach. In other words, you determine its impact upon the average person in the community. The books, pictures and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by presentday standards."

We believe that the above test applies to a case such as the instant one. The word "performance" could be substituted for "books, pictures, and circulars."

In the Roth case, supra, the Court also made the following pertinent observation:

"Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. '* * * (T)he Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices * * *.' United States v. Petrillo, 332 U.S. 1, 7--8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark '* * * boundaries sufficiently...