concurring.
I concur in the judgment of the Court in this case, but not upon the ground, nor for the reasons given by the majority. The record shows that the defendant was arraigned for the opprobrious and abusive language, as well as for the language held by the majority of the Court to be obscene and vulgar. To say to another, “you are a God d-n liar,” has I believe, been uniformly held to be opprobrious language, tending to a breach of the peace, and is clearly within the letter of the statute.
But the language “go to bed with me” is in itself neither obscene nor vulgar, and has never before been so held in any Court, as far as I know or believe. Taken in connection with the surrounding circumstances in this case, the conclusion is very natural, that the defendant intended this as a proposition to violate chastity. And there would he no difficulty in maintaining an indictment upon it, for making such a proposition, if that were made criminal by the statute. But I am aware of no provision in the Penal Code making it criminal to submit such a proposition if nothing more is done. And as I am bound to construe criminal statutes strictly, and as there is nothing obscene or vulgar in the language itself, though it makes a proposition that ought, in my opinion, to be criminal, I do not feel at liberty to embrace it by construction. '
Till a very recent period I recollect no law of this State making it criminal to use obscene or vulgar language in. presence of a female. In the passage of this law, the Legislature has taken a step in the right direction. But I do- not think it the proper province of the Courts to extend this penal statute, by forbidden rules of construction, so as to embrace offenses against morality, decency, or good breeding, which the Legislature has not thought proper to embrace. If that authority should, pass an Act making all such propositions ■criminal, I shall take great pleasure in executing it, while I re*283main upon the Bench. But I do not feel that I possess that power as a Judge.
^Remedial statutes governing civil rights are to be construed liberally, as the majority of this Court construe this statute, so as to suppress the mischief and advance the remedy. But I am taught by all the books that no such rule prevails in the construction of penal statutes; and I think it impossible to sustain the judgment of the majority of the Court in this case, placing it upon the ground where they place it, without the application of a rule of liberal construction, to this penal enactment.
When we apply the strict rules required in the construction of penal laws to this statute, I think it very clear that language, to be indictable under it, must be obscene and vulgar in its ordinary acceptation, and must convey an obscene and vulgar idea; and it is not sufficient to sustain the indictment that language decent in itself, conveys in the particular case an obscene and vulgar idea. The rule as already stated would be different if the statute were a remedial one, applicable to civil cases.
I am unable to view this decision of the majority of the Court, in any other light than that it is legislation by construction, making that criminal which is not criminal under the statute, when construed by well-known and authoritative rules. While I agree that the legislation of my brethren in this case may be very good legislation, I do not feel at liberty to participate in it, as that authority belongs to another department of the government.