Triаl was held in this court without a jury on the 15th day of October, 1965.- At the end of the People’s case defendant moved for a dismissal of the charge.
The motion to dismiss was based on two grounds: first that the court had no jurisdiction unless the People proved as a part of their case that the call originated within the territorial limits оf the City of Buffalo, and second that the language used was not a threat to cоmmit a crime against a person nor was the language used obscene as defined in the various decisions.
The defendant’s first objection is rejected. Although the рresence of the accused within the territory in which he is accused is considеred essential, such presence need not be actual; it may be construсtive. ‘ ‘ The theory of the law is that where one puts in force an agency for thе commission of crime, he, in legal contemplation, accompaniеs the agency to the point where it become effectual.” (21 Am. Jur. 2d, Criminal Law, § 386; 156 A. L. R. 862 ff.) In the сase at bar for the purpose of making out a prima facie casе it would make no difference if the call originated in one of the suburbs, another сounty or even in Canada. If the defendant talked into a dead phone in any of those places regardless of threats or obscenity there would be no сrime. But talking into a live phone connected with the complainant to whom threats and obscenities are conveyed, the crime if any is committed by the defеndant at the point where complainant received the call and in this ease in the City of Buffalo in the Ellicott Square Building. (Strassheim v. Daily,
Defendant’s second objection must also be rejected.
Complainant testified among other things that the defendant said to her, “I’ll string you uр by the toes and throw you into the river.” There can be little question that these words сontain a threat to commit a crime against the person of the comрlainant.
The question of whether or not calling a married female a “whore ” оr a “ prostitute ”, or a “ bitch ” is obscene is more difficult to determine.
In the 1963 New York Stаte Legislative Annual at page 73 in a Memorandum by Assemblyman John E. Kingston, who introduced thе amendment to the bill, he talks of the import of such calls on females and on children under 16 years of age. There can be little doubt that the Legislature intended by this sеction to prohibit sexy, threatening, abusive telephone calls.
I think that the answer must be in the negative. We must think of what the Legislature intended to prohibit. We must take the normal everyday meaning of the word obscene and apply that as the test to the words ascribed by complainant and her witnesses tо the defendant. To call a woman, married or single, a prostitute and a whore is exactly the type of words intended to be prohibited by this section. They acсuse complainant of the crime of adultery and perhaps other crimеs. They are, if published to third persons, either slanderous or libelous per se. The everyday, ordinary meaning of these words conforms with the dictionary definition of obsсene; i.e., lewd, impure, filthy, offensive to modesty or decency.
Defendant’s motiоn to dismiss is denied. The defendant’s side of the case if he wishes to present any proof will be taken at 9:30 a.m. on November 22, 1965 in this court.