The indictment in this case charges that the defendant at a public meeting spoke three Polish words of and concerning the complainant, signifying in English "She is a whore," and that he thereby openly outraged public decency against the form of the statute in such case made and provided.
The statute upon which the indictment is expressly based is section 43 of the Penal Law, the portion of which it is material to consider here reading as follows: "A person who wilfully and wrongfully commits any act *Page 199 * * * which openly outrages public decency, for which no other punishment is expressly prescribed by this chapter, is guilty of a misdemeanor."
The learned county judge before whom the case was tried construed the statute as applicable to the utterance of words alone; whereas it seems to me that section 43 of the Penal Law is intended to denounce and punish acts which openly outrage public decency, as distinguished from mere words.
The construction thus far given to the section, if approved by this court, may lead to the punishment of slander as a crime — a consequence which I do not believe was contemplated by the legislature.
It is impossible to sustain this indictment unless the words "commit any act" in the statute are construed broadly enough to include the utterance of a defamatory statement by word of mouth.
I am unwilling to adopt such a construction and thereby to hold that the legislature without clearly and unequivocally manifesting an intention so to do, has thus for the first time in the history of the state of New York made mere slander — i.e., defamation by spoken words — a criminal offense.
The oral imputation of want of chastity applied to a woman did not even give her the right to recover damages in a civil suit at common law, although such right now generally exists in most of the states by virtue of the statutes expressly conferring it. If it has as yet anywhere been made a crime, that fact has escaped my attention. "Slander," says Mr. Townshend in his excellent treatise on the law of slander and libel, "is not like libel an indictable offence. Nor is a single precedent of any criminal proceeding for unwritten imputations upon the character of individuals to be found except in cases of high treason." (Townshend on Libel Slander [4th ed.], page 6, n.)
I am convinced that section 43 of the Penal Law was *Page 200 designed to deal with deeds and not simply words of misconduct. Annoying language amounting to a nuisance is dealt with elsewhere in the statute. (Penal Law, § 720.) All that is charged or proved against the defendant here is the publication of a slander against a woman. The legislature unquestionably possesses the power to declare that mere slander shall be deemed criminal, if it sees fit to do so; but I insist that it has not done so yet. It is not to be presumed that such a pronounced change in the criminal law would have been made in phraseology which certainly does not on its face suggest the meaning sought to be assigned to it in this prosecution.
For these reasons I think this indictment does not state facts constituting a crime. The judgment of conviction should be reversed, the indictment dismissed, defendant's bail exonerated and the defendant discharged from custody.