State v. ChristineState v. Christine
Lead Opinion
The State of Louisiana appeals from a judgment of the trial court holding Paragraph Three of
“ * * * 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, y: • # ;Jí »
In her demurrers and motions to quash,
In holding Paragraph Three of
“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*265 to be reached by the legislature in adopting the statute.”
Therefore, to properly determine the constitutionality vel non of Paragraph Three of
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,
“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 cor*267 porate 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 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 genuine 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,
*269 “ * * * ‘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,
“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
In Roth v. United States,
. “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*271 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 present-day 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 distinct for judges and juries fairly to administer the law * * That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense * * *.’ Id.,332 U.S. at page 7 ,67 S.Ct. at page 1542 . See also United States v. Harriss,347 U.S. 612 , 624, note 15,74 S.Ct. 808 , 815,98 L.Ed. 989 ; Boyce Motor Lines, Inc. v. United States,342 U.S. 337 , 340,72 S.Ct. 329 , 330,96 L.Ed. 367 ; United States v. Ragen,314 U.S. 513 , 523-524,62 S.Ct. 374 , 378,86 L.Ed. 383 ; United States v. Wurzbach,280 U.S. 396 ,50 S.Ct. 167 ,74 L.Ed. 508 ; Hygrade Provision Co. v. Sherman,266 U.S. 497 ,45 S.Ct. 141 ,69 L.Ed. 402 ; Fox v. State of Washington,236 U.S. 273 ,35 S.Ct. 383 ,59 L.Ed. 573 ; Nash v. United States,229 U.S. 373 ,33 S.Ct. 780 ,57 L.Ed. 1232 .”
We believe that the issues in the instant case have been previously determined in the case of State v. Rose,
“Appellant concedes that the word ‘dancing’ is well understood, but he contends that the adjective ‘lewd’ has so many and diverse meanings that it does not definitely describe the kind of dancing that the statute undertakes to denounce as offensive. He reminds rls that there is hardly a word in the English language that has only one meaning. It is not in the abstract, however, that we find the exact meaning of a word, but in the context or combination of words. As counsel for appellant says, the word ‘lewd’ has no statutory definition, nor technical meaning. But it has, particularly when applied to dancing, the very well and generally understood and unmistakable meaning, indecent, lascivious, lecherous, tending to excite lustful thoughts. If all of these qualifying terms were contained in the statute, they would amount to nothing but tautology, which is no more desirable in a statute than in a newspaper write-up or elsewhere.”
The only difference between the Rose case, supra, and the instant case is that the defendant Rose was keeping a disorderly house by permitting lewd dancing, while herein the defendant is the dancer. Applying the test, yardstick, or theory — call it what one will — as applied in the Rose and Roth cases, supra, to the instant case, we find:
(1) That dancing, as stated supra, is included within the meaning of performance; a performance is very well and generally understood to include a dance, a song, a recitation, an act, a play, a pantomime, all of which could be acted or performed in a lewd and indecent manner.
(2) The words “any act of lewdness or indecency, grossly scandalous and tending to debauch the morals and manners of the people” have, particularly when applied to dancing, the very well and generally understood and unmistakable meaning, lascivious, lecherous, tending to excite lustful thoughts.
If all of the qualifying terms above enumerated were contained in
We conclude that the word “performance” and the words “of any act of lewdness or indecency, grossly scandalous and tending to debauch the morals and manners of the people,” as set forth in LSA-R.
A person accused of a criminal offense is presumed to be innocent until this presumption is overcome by the weight of the evidence. The burden is upon the State to prove, beyond a reasonable doubt, every essential element constituting the offense charged. The trial judge is vested with the discretion to determine, after hearing the evidence in the instant case and weighing the facts adduced by the evidence, whether or not the dance is lewd and indecent, grossly scandalous, and tending to debauch the morals and manners of the people.
In a supplemental demurrer and motion to quash, defendant further contended that she was entitled to a legislative pardon because Act 314 of 1950 (amending and reenacting
We do not find that Section 2 of Act 388 of 1958, namely, “all laws or parts of laws in conflict herewith are hereby repealed,” had the effect of erasing the information filed against the defendant. No mention is made therein that prosecutions based on in-formations filed under Act 314 of 1950 should not be tried.
The general saving statute,
“The repeal of any law shall not have the effect of releasing or extinguishing any penalty, forfeiture or liability, civil or criminal, incurred under such law unless the repealing act expressly so provides, and such law shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability,”
is regarded as being written into Act 388 of 1958, State v. Bowie,
We agree with the finding of the trial judge that Act 388 of 1958 does not expressly provide for the release and extinguishment of the penalty incurred under
For the reasons assigned, the judgment of the trial court, holding Paragraph Three of
Notes
. “Obscenity is the intentional: * * *
“(3) Performance by any person, or the showing or display of any picture or motion picture, 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”;
. In paragraph three of defendant’s supplemental motion to quash and demurrer, she averred:
“The criminal information herein is based upon L.S.A.-R.S. 14:100(3), as amended by La. Act 314 of 1950. This subsection (3) is unconstitutional in that 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; * * * ’, are 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. The subsection, therefore, violates Article 1, Section 2, of the Louisiana Constitution, which provides that ‘ * * * No person shall be deprived of * * * liberty or property, except by due process of law. * * * ’ It violates Article 1, Section 9, of the Louisiana Constitution which states that the accused ‘ * * * shall have the right to defend himself * * * and, Section 10 of the same article which provides that ‘ * * * In all criminal prosecution[s], the accused shall be informed of the nature and cause of the accusation against him * * *.’ Further, the subsection for the given reasons violates the 6th and 14th Amendments of the United States Constitution, in that the accused is not ‘ * * * informed of the nature and cause of the accusation * * ’ (6th Amendment); and, the action of the State would deprive the accused of liberty and property without due process of law, and the accused would be denied the equal protection of the laws. (14th Amendment, Section 1)”
. “ * * * it is not in the abstract, however, that we find the exact meaning of a word, but in the context of combination of words. * * * ” State v. Rose,
. In City of Shreveport v. Wilson, we held that Section 4,
“Be it further ordained, etc., that it shall be unlawful for any person to use or occupy any hotel, house, room or other building or place for the purpose of prostitution, assignation or other lewd or indecent'act, in. the city of Shreveport,” of an ordinance of the City of Shreveport was not applicable to an offense alleged to have been committed by the defendants. We did not pass upon the constitutionality of the ordinance. The decision plainly stated:
“The only question thus presented is whether the municipal ordinance has application to the facts stated.
“Our opinion is that the ordinance is not applicable. * * * ”
Dissenting Opinion
(dissenting).
The trial judge, in quashing the bill of information charging the defendant, Lilly Christine, with obscenity, in violation of RS 14:106(3), gives, in an able and well-considered opinion, an exhaustive analysis of the jurisprudence of this court on the subj ect matter; and, in concluding that the phrase “Performance * * * of any act of lewdness or indecency” as used in the act and in charging the accused is, taken either alone or in context, so indefinite, vague, and uncertain it renders Paragraph 3 of RS 14:-106 invalid and unenforceable, summarizes the substance of the pertinent jurisprudence thusly: “ * * * when the Supreme Court of Louisiana had before it the words ‘lewd or indecent acts’ (City of Shreveport v. Wilson,
It is conceded by the state in brief and by the majority opinion that the decision in this case depends entirely on whether the performance of “any act of lewdness or indecency” is sufficiently descriptive to (1) inform the accused with exactness the charge against her, and (2) give her an opportunity to properly defend herself, but the state contends a ‘lewd performance’ is the same as ‘lewd dancing,’ which was held in State v. Rose,
A cardinal rule basic in our law provides that one cannot be held accountable, or subjected to criminal prosecution, for any act of commission unless and until that act has first been denounced as a crime in a statute that defines the act sought to be denounced with such precision the person sought to' be held accountable will know his conduct falls within the purview of the act intended to be prohibited by, and will be subject to the punishment fixed in, the statute. And the courts have not only consistently refused to usurp the prerogatives of the legislature by supplying either the definition or essential elements thereof that have been omitted in the drafting of the statute, but, under rules calling for strict construction in all criminal and penal statutes as stricti juris, resolved ambiguities in favor of the accused. State v. Smith,
While “The dividing line between what is lawful and unlawful cannot be left to conjecture * * * Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizens may act upon the one conception of its requirements and the courts upon> another.” United States v. Capital Traction Co.,
This court, in the early case of State v. Comeaux,
In State v. Truby,
In State v. Vallery,
In my opinion the trial judge was bound by the long line of judicial pronouncements of this court in quashing the indictment in the instant case. I think clearly the Rose case is without application here and is easily distinguishable from the case at bar, as demonstrated in the Truby case. There is not a single word in the phrase “Performance * * * of any act of lewdness or indecency” — either alone or taken in context with the remaining words in the phrase — that has a fixed meaning. The decision in the Comeaux case, where “indecent assault;” in the Wilson case, where “lewd or indecent act;” in the Vallery case, where “perform any immoral act;” and in the Truby
This court cannot, under the guise of interpretation, assume legislative functions that would, in effect, confer upon the several courts of the state the power to decide not only what constitutes “performance * * * of any act of lewdness or indecency,” in the concept of the accepted standard of that phrase in the respective communities, but also to determine what, in each community, would be considered “grossly scandalous and tending to debauch the morals and manners of the people.” As pointed out in the Vallery decision, if this were permitted “there would be no certain' or understandable rule and no uniform standard of conduct to guide the individual in ascertaining what acts it is his duty to avoid, doing violence not only to the constitutional requirement that the ascertainable standard of guilt by which all citizens are to be guided be fixed by the legislative branch of the government, but also to the equal protection and due process clauses safeguarding against discrimination.” See, State v. Smith,
I therefore respectfully dissent.
Lead Opinion
On Rehearing.
The bill of information charging the defendant, Lilly Christine, with obscenity, in violation of paragraph (3) of R.S. 14--.106,
The trial judge, in quashing the bill of information, gives, in an able and well-considered opinion, an exhaustive analysis of the jurisprudence of this Court on the subject matter; and, in concluding that the phrase “Performance * * * of any act óf lewdness and indecency" as used in the act and in charging the accused is, taken either alone or in context, so indefinite, vague, and uncertain it renders Paragraph 3 of R.S. 14:106 invalid and unenforceable, summarizes the substance of the pertinent jurisprudence thusly: “ * * * when the Supreme Court of Louisiana had before it the words ‘lewd or indecent acts’ (City of Shreveport v. Wilson,
Counsel for the state, in their original brief, did not challenge this jurisprudence, and concede that the decision in this' case depends entirely on whether the performance of an “act of lewdness or indecency” is sufficiently descriptive to (1) inform the
A cardinal rule basic in our law provides that one cannot be held accountable, or subjected to criminal prosecution, for any act of commission unless and until that act has first been denounced as a crime in a statute that defines the act sought to be denounced with such precision the person sought to be held accountable will know his conduct falls within the purview of the act intended to be prohibited by, and will be subject to the punishment fixed in, the statute. And the courts have not only consistently refused to usurp the prerogatives of the legislature by supplying either the definition or essential elements thereof that have been omitted in the drafting of the statute, but, under rules calling for construction of all criminal and penal statutes as stricti juris, resolved ambiguities in favor of the accused. State v. Smith,
“The dividing line between what is lawful and unlawful cannot be left to conjecture * * *. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizens may act upon the one conception of its requirements and the courts upon another,” United States v. Capital Traction Co.,
This court, in the early case of State v. Comeaux,
In State v. Truby,
In State v. Vallery,
It is apt to observe here that following the rationale of these two decisions, and within a year of the latter, in State v. Kraft,
We are constrained to hold, as did the court in State v. Truby, supra, that the decision of this court in the case of State v. Rose, supra, is not controlling here. The phrase “lewd performance” is just as vague and indefinite as “the performance of any act of lewdness or indecency,” or of “a lewd and indecent act,” the last having been held to be too vague and indefinite to inform the party accused of the nature and cause of the accusation against him in the case of City of Shreveport v. Wilson, supra. See State v. Rose,
Clearly, therefore, the trial judge, being bound by the judicial pronouncements of this court,-was without choice to pursue any other course than the one he adopted; and unless we are prepared to overrule this jurisprudence, we cannot accede to the suggestion of counsel for the state in their supplemental brief that we follow the reasoning of the Supreme Court of Georgia in the case of Fowler v. State,
And whatever merit there might be in language lifted from the decision of the United States Supreme Court in the case of Roth v. United States,
For the reasons assigned, the judgment appealed from is affirmed.
. R.S. 14:106, formerly Article 106 of the Louisiana Criminal Code, declares that
“Obscenity is the intentional:
“ (1) Exposure of one’s person in a public place in such manner that any part óf a sex organ may be seen by another person; or
“(2) Production, sale, exhibition, possession with intention to display, exhibit, or sell, or the advertisement of, any obscene, lewd, lascivious, filthy, or sexually indecent print, picture, motion picture, written composition, model, instrument, contrivance or thing of whatsoever description; or
“(3) Performance by any person, or the showing or display of any picture or motion picture, 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; or
“(4) Solicitation or attempt to entice another, in any public place or in any public manner, to commit any act of lewdness or indecency, grossly scandalous and tending to debauch the morals and manners of the people; or
“(5) Solicitation or attempt to entice another person to commit any public act of lowdness or indecency, grossly scandalous and tending to debauch the morals and manners of the people.
“Whoever commits the crime of obscenity shall be fined not more than two thousand dollars, or imprisoned for not more than five years at hard labor, or both.” (As amended, Acts 1958, No. 388, See. 1) (Emphasis supplied)
*287 Under the italicized portion of the said paragraph (3) of this Statute, it was charged that the accused, “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.”
. The accused filed a supplemental motion to quash in which, it was contended the Legislature, in adopting Act No. 388 of 1958 amending R.S. 14:106 by increasing the penalty, without the inclusion of a saving clause, automatically granted her a legislative pardon — otherwise, it would be an ex post facto law, violative of section 15 of Article IV of the Louisiana Constitution of 1921 and Clause 1 of Section 10 of Article I of the Constitution of the United States, since the act with which she is charged was committed on July 16, 1958, and the effective date of the repealing statute was July 30, 1958. Although the trial judge overruled this motion, in view of the conclusion we reach on the original motion, we express no opinion with respect to the correctness of his ruling on this supplemental motion.
.. The Legislature, by Act 314 of 1950, amended and rewrote the paragraph and inserted the word “sexually” before the words “indecent print;” and this was held to be sufficient in State v. Roth,
Dissenting Opinion
(dissenting).
LRS 14:106(3), with the violation of which the accused is charged, provides: “Obscenity is the intentional: * * * (3) 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 * * This provision, in my opinion, admits of no double meaning and is not indefinite, vague and uncertain so as to render it invalid and unenforceable.
According to modern usage the word “lewdness” connotes lustful, libidinous, lascivious, unchaste conduct; “indecency” is a state of unfitness to be seen or heard. See Webster’s New International Dictionary, Second Edition. This being true the statute in question, when considered in its entirety as must be done, can only be interpreted as prohibiting the performance in a public place or in a public manner of any act which offends against sexual morality and decency — any act (to use the language contained in State v. Rose,
The decisions cited in support of the majority opinion are inapposite. Only City of Shreveport v. Wilson,
“Our opinion is that the ordinance is not applicable. * * * ”
In the remaining cases relied on by the majority the language of the assailed laws,
I respectfully dissent.
Dissenting Opinion
(dissenting).
I am still of the opinion that LSA-R.Sv 14:106(3), Act 314 of 1950, Sec. 1(3), is constitutional for the reasons set forth in
The decision in the case of Roth v. United States,
“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 present-day standards.”
I believe that the above test applies to a case such as the instant one. The noun “performance” can be substituted for “books, pictures, and circulars.”
I repeat: The word “performance” and the words “of any act of lewdness or indecency, grossly scandalous and tending to debauch the morals and manners of the public,” as set forth in
I respectfully dissent.
. “We are in agreement with Judge Driver’s opinion that the standard to be applied in determining whether or not publications are obscene within the meaning of § 1305(a) of Title 19 Ü.S.C.A. ‘is the judgment of the average, normal, reasonable, prudent person of the community in which the publication is circulated. If, at the time of such circulation, considered as a whole it offends the sense of propriety, morality, and decency of such average person, it is within the bar of the statute. Otherwise it is not. Guided by these general principles * * the trier of facts must draw the line as best he can between art and pornography —between what is permissible and what is objectionable and obscene.’
“We find no error in the trial court’s findings of fact, based upon its application of this standard to the facts established b* the record in this case. We adopt Judge Driver’s opinion as the opinion of the court. United States v. 4200 Copies International. Journal, D.C.,
“The constitutional questions which appellant has raised in this court and which were not discussed in the opinion of the district court have been foreclosed by the decision of the Supremo Court in Roth v. United States, [
“The judgment is affirmed.”
Concurrence Opinion
(concurring).
I subscribe to the majority ruling. Obscenity, as applied to this case, is defined to be the intentional “Performance by any person, * * * in a public place or in a public manner, of any act of lewdness or "indecency, * * * ” or, stated in another way, a lezvd public performance. The word “lewd” has a broad meaning when used alone but, when associated with the words public performance, it connotes a lecherous, libidinous, lascivious performance, i. e., aentertainment or show tending to excite lustful thoughts. State v. Rose,
Concurrence Opinion
(concurring).
In subscribing to the majority ruling on. the original hearing I stated in a separate opinion that the crime of obscenity, as applied to this case, had been adequately defined by the Legislature in R.S. 14:106(3) because the statutory descriptive words “lewdness or indecency” were used in association with the noun “performance” thereby signifying the prohibition of a lewd or indecent public performance or entertainment — a well defined and certain type of act within the rulings in State v. Rose,
After further consideration, I am convinced that this view and that of the majority of the court on original hearing was not well founded.
The error I now perceive concerns the meaning of the word “performance” as used • in the statute. By transposing the noun “performance” as the object of lewdness and indecency so as to make it synonymous with public entertainment or public show, the conclusion was drawn that the conduct the Legislature intended to reach was lewd and indecent public performances or shows. But this was inaccurate because the noun “performance” is. not used in the statute as a noun but as the verb “to do” (see State v. Wooderson,
When thus viewed, it is seen that the statute fails to apprise an accused with any degree of definiteness of the nature of the conduct prohibited and, therefore, it falls in the same category as the statutes which have been heretofore stricken with nullity by this Court in State v. Comeaux,
For these reasons and those expressed in the majority opinion, I respectfully concur.