The defendant was indicted, tried and convicted as for a misdemeanor committed, it is alleged, in violation of the provisions of section 43 of the Penal Law; and the specification of the indictment is that on or about the fourth day of February, 1913, at a public meeting held in the village of Mineville, Essex county, this state, the defendant did "maliciously, unlawfully and openly outrage public decency" by speaking in the Polish language of and concerning one Marta Barkowska the words "ona jest kurwa," which, translated into English, means "she is a whore."
The section of the Penal Law (43) upon which this indictment is founded provides that "A person who wilfully and wrongfully commits any act which seriously injuries the person or property of another, or which seriously disturbs or endangers the public peace or health, or which openly outrages public decency, for which no other punishment is expressly prescribed by this chapter, is guilty of a misdemeanor; but nothing in this chapter *Page 201 contained shall be so construed as to prevent any person from demanding an increase of wages, or from assembling and using all lawful means to induce employers to pay such wages to all persons employed by them, as shall be a just and fair compensation for services rendered."
The most casual reading of this statute at once reveals its peculiarities. It is obviously one of those "dragnet" laws designed to cover newly invented crimes, or existing offenses that cannot be readily classified or defined. If there is the slightest doubt on this subject, one has only to refer to the former Penal Code (section 675), of which it was once a part, to ascertain that section 43 as it now stands is the result of a division of earlier sections and a re-distribution of subjects that is, to say the least, not palpably congruous. Even if we assume that there may be a natural and logical relation between the things which this section brands as criminal and those lawful acts which it expressly sanctions, we have still to learn, if we can, what is forbidden, and for that purpose we proceed to a closer view of the statute.
It is noteworthy that section 43 deals with acts as distinguished from words, and the reason is doubtless to be found in the collocation of interdicted subjects, and in the legislative recognition of the ancient common law rule which has long prescribed punishment for criminal libel, but has never recognized any such thing as criminal slander. We can all readily think of many acts that would seriously injure the person or property of another; or that would endanger the public peace or health; or that would openly outrage public decency. It is not so easy to enumerate mere words or phrases which would have that general effect.
The charge is that the defendant outraged public decency at a public meeting by calling a certain woman a whore. This language was plainly slanderous of the person of whom it was used; but that, as we have observed, is not a criminal offense. For the purpose of testing the *Page 202 question whether it is per se an outrage of public decency to call a woman a whore at a public meeting, the character and occasion of the gathering must be considered.
It is alleged that the offensive words which the defendant is charged with having used were spoken in the Polish language, and from this we may fairly infer, what is not in terms alleged, that they were addressed to an audience composed of Poles. They were spoken at a meeting held for the purpose of considering the conditions relating to a labor strike then in progress in that neighborhood, and it was the complainant's position in the strike that seems to have inspired the defamatory words uttered by the defendant. If in groping for some standard of public decency which the statute does not fix or define, we seek light in the prevailing common judgment and moral sense of the community where an act is done or words are spoken, we are no better off than we were before. What is the prevailing common judgment and moral sense of a community of Poles in respect of such an expression as is charged against the defendant? For aught we know, the Polish language may be one in which this form of expression, when made in public, is not considered so improper as to shock or outrage public decency. The trouble with this statute is that it fixes no definite standard or rule of public decency; and in the nature of things that is plainly impossible. To the extent that this statute deals with acts and language so obviously offensive to the general sense of public decency that there is really no room for discussion, the courts of criminal jurisdiction will have no difficulty in applying and enforcing its provisions. In all other cases the courts must construe the statute, as best they can, in the light of the particular charge under investigation. We think the indictment in the case at bar, tested by this rule, does not specify a crime. (McJunkins v. State, 10 Ind. 140.) The charge against the defendant is really nothing more than an accusation of slander. Assuming the defendant's *Page 203 statement to be slanderous, the offense is not one for which there can be a criminal prosecution. The defendant's motion in arrest of judgment should, therefore, have been granted, and this view of the case requires a reversal of the judgment of conviction, a dismissal of the indictment, and the discharge of the defendant.
If a majority of the court should decide that the indictment does charge a crime, there is an additional ground for reversal which is imperative. It grows out of the charge to the jury by the learned county judge, in whose court the case was tried. He said to the jury: "I instruct you, as a matter of law, that if the defendant uttered those words that I have named to you at the time and place in question, and under the circumstances then prevailing, it being a public building, which was more or less thronged with people composed of both sexes, I instruct you, as a matter of law, that if he did utter those words, he was guilty of the crime as to which he stands charged." This was plainly erroneous.
The judgment of conviction should be reversed, the indictment dismissed and the defendant discharged from custody.