DISSENTING OPINION
JACKSON, J.I dissent from the majority opinion for the following reasons:
The statute upon which such prosecution was based, Acts 1957, ch. 61, §1, p. 114, being §10-1511, Burns’ 1959 Cum. Supp., reads as follows:
“Annoying, molesting or harassing another or indecent language by telephone calls. — Whoever telephones another person and addresses to or about such other person any lewd, lascivious or indecent words or language; or whoever telephones another person repeatedly for the purpose of annoying, molesting or harassing such other person, or his or her family, shall be deemed guilty of the misde-*566meanor of being a disorderly person, and, upon conviction, shall be fined in any sum not exceeding five hundred dollars [$500.00], to which may be added imprisonment in the county jail not exceeding six [6] months: Provided, that any offenses committed by the use of a telephone as herein set out may be deemed to have been committed at either the place at which the telephone call or calls were made, or at the place where the telephone call or calls were received.”
The indictment on which appellant was tried is set out in the majority opinion.
The sufficiency of the indictment and each count thereof was tested by motion to quash, such motion being overruled as to both counts.
Trial was had by jury resulting in a verdict of guilty on both counts, finding and judgment on each count being that appellant be fined in the sum of Five Hundred Dollars ($500) and be imprisoned in the County Jail for a period of six months.
Appellant’s assignment of errors consists of five specifications, as follows:
“1. The trial court erred in overruling appellant’s Motion to Quash each count of the Indictment.
“2., The trial court erred in overruling appellant’s Motion to Quash Count 1 of the Indictment.
“3. The trial court erred in overruling appellant’s Motion to Quash Count 2 of the Indictment.
“4. The trial court erred in overruling appellant’s Motion for a New Trial.
“5. The trial court erred in overruling appellant’s Motion for John L. Niblack to disqualify himself.”
Assigned errors one, two and three will be and are considered together. Such motions are based upon the two following statutory grounds:
*567“1. The facts stated in said indictment do not constitute a public offense.
“2. Said indictment does not state the offense charged with sufficient certainty.”
Generally it is sufficient to charge an offense in the substantial language of the statute or the equivalent thereto. Goldstine v. State (1952), 230 Ind. 343, 350, 103 N. E. 2d 438; Hitch v. State (1936), 210 Ind. 588, 591, 4 N. E. 2d 184. Such a charge will withstand a motion to quash where the statute defines the offense and enumerates the acts or omissions which constitute a crime. However, this general rule does not apply where the statute defines the crime in general terms or includes generic classifications. In such an instance the charge must be framed with particularity. Robinson v. State (1953), 232 Ind. 396, 398, 112 N. E. 2d 861; McNamara v. State (1932), 203 Ind. 596, 603, 181 N. E. 512; State v. Bridgewater (1908), 171 Ind. 1, 4, 85 N. E. 715.
Charging a crime such as is involved herein presents certain peculiar problems due to the nature and substance of the offense. It has been held that in framing an indictment charging the publication or dissemination of obscene, lewd, or lascivious material it is sufficient to set out a general allegation of obscenity in the language of the statute with the explanation that the text of the objectionable matter is so gross as to be offensive to the court. Sunderman v. State (1926), 197 Ind. 705, 707, 151 N. E. 829, and cases cited therein. These cases hold that a conclusion of obscenity charged in the generic language of the statute is sufficient to withstand a motion to quash. Underlying this particular isolated problem of charging the crime involving lewd or obscene matter there exists that basic conflict which is inherent in the whole of our law, that is public interest versus *568individual right. Here we have a social interest in withholding such filth and obscenity from the face of the record in the interest of public decency and judicial dignity. Opposing this interest is the'right of the individual defendant to be specifically and precisely charged so that he may be fully apprised of the charges against him and make ready his defenses accordingly.
In the Sunderman case, supra, this basic conflict of social interest versus individual right was easily reconciled. There the charge involved printed, matter. The indictment was sufficient in its general reference to said printed matter and the allegedly obscene publication could be preserved for subsequent presentation upon the trial of the accused. Thus the public interest in excluding the text of the obscene matter from the face of the record could be served without jeopardizing the right of the defendant to be charged with particularity. Robinson v. State, supra, (1958), 232 Ind. 396, 398, 112 N. E. 2d 861.
In the instant case the corpus delicti of the crime consists of nothing more tangible than spoken words rather than printed or written matter. The evanescent and transitory nature of such oral utterances requires that the words themselves be set out on the face of the indictment so that the accused may be cognizant of the precise substance of the charge against him. Spoken words do not accommodate incorporation by reference as does printed matter. For this reason the indictment “must be so clear and distinct that there may be no difficulty in determining what evidence is admissible thereunder.” State v. Bridgewater, supra (1908), 171 Ind. 1, 4, 85 N. E. 715.
We may reason by analogy from the Goldstine case, supra, wherein the defendant was charged with the offense of possessing “burglar tools,” The opinion by *569Jasper, J., states that “The words ‘burglar tools or implements,’ as used therein, are of such a general character that they are not sufficiently certain in themselves to apprise the accused of the charge when a motion to quash is filed.” It is therefore concluded that “. . . a substantial description of the tools is necessary to advise appellant of the crime with which he is charged.” This reasoning applies with equal force to the case at hand. The generic classification of “lewd, lascivious or indecent words or language” and the definition of what conduct constitutes the offense of telephoning “another person repeatedly for the purpose of annoying, molesting or harassing such other person” is no more specific and certain than the term “burglar tools or implements.”
In the instant case a generic charge in the terms of the statute cannot serve to afford the accused the full measure of his rights. In such a case the public interest in withholding such obscenities from the record is necessarily subservient to the individual right of the accused to be apprised of the specific charge lodged against him.
Count one does not apprise the defendant of what he is alleged to have said, and it does not inform him of the nature of the accusation in such a manner as to enable him to prepare a defense, nor does it afford him protection against double jeopardy because it does not point out the specific facts upon which the state is basing its case. Goldstine v. State, supra (1952), 230 Ind. 343, 350, 103 N. E. 2d 438.
Count two of the indictment recites that the defendant telephone “. . . another person, to-wit: BERNARD W. WYNN, repeatedly for the purpose of annoying, molesting and harassing the said BERNARD W. WYNN, or his family. . . .”
■ The statute directed to this part recites “. . . or *570whoever telephones another person repeatedly for the purpose of annoying, molesting or harassing such other person, or his or her family shall be deemed guilty of a misdemeanor. ...”
The motion to quash count two is also based upon the statutory grounds as set forth above, being the failure of the indictment to state a public offense, and, secondly, that the offense is not stated with sufficient certainty.
Criminal statutes must contain an ascertainable standard- of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. Guetling v. State (1927), 198 Ind. 718, 726, 153 N. E. 765. Behind this rule is the requirement of fair notice of what conduct may entail punishment.
“To be enforceable a criminal statute must clearly and definitely define the crime so that an ordinary person may. know with certainty when he is violating it. . . .” Caudill v. State (1946), 224 Ind. 531, 534, 69 N. E. 2d 549.
In creating -and defining a public offense, unknown at common law, the statute must be sufficiently certain to show what the Legislature intended to prohibit and punish or it will be struck down as being void for vagueness. Smith v. State (1917), 186 Ind. 252, 256, 115 N. E. 943.
It is to be conceded that the statute here in question meets this minimum test of certainty and adequately conveys the Legislative intent to “a person of ordinary intelligence.” The fact that the instant ■ statute defines the offense in generic terms does not necessarily render it invalid. However, a' charge drawn under this act must' necessarily supply the' particulars ’ of the crime charged. A statute which defines a crime in general language may be sufficient, but an indictment framed *571thereunder must charge the offense with particularity.' In framing a charge under such an act as is here involved, the general statutory language must be supplemented by an indictment or affidavit which either states facts sufficient to apprise the accused of the specific words or language used and the approximate time when the alleged telephone call was made, or if the charge is for repeatedly telephoning another person for the purpose of annoyance, harassment or molestation, the facts showing when such calls were made should be set out in the indictment or affidavit so that an accused cannot be indicted for one series of telephone calls and con-: victed on another.
A charge in the words of the statute, Acts 1957, ch. 61, §1, p. 114, being §10-1511, Burns’ 1959 Cum, Supp., supra, is not alone sufficient to meet these requirements.
I am also in utter disagreement with the statement in the majority opinion that “. . . prior and similar acts are competent to show an intent and the pattern of the appellant’s operations, even though at the time’ such acts and transactions did not constitute a violation of the law. ... It occurs to us that where acts of the nature involved in this case, namely, the use of lewd7- and indecent language over the telephone are made a crime, prior conduct of that nature which is inherently immoral and improper, even though at the time not a crime, is relevant to show a course of conduct with which the appellant is charged.”
The defendant is not charged with “a course of conduct,” he is charged with the commission of a crime. A -statute of 1852, not repealed, declared that all “Crimes and misdemeanors shall be defined and punishment therefor fixed by statutes of this state and not other* wise”’ 1 R. S. 1852, ch. 61, §2, p. 851, being §9-2401 Burns’ 1956 Replacement. The language of the major*572ity opinion implies that a criminal intent may be inferred from the commission of an act not in itself a crime. Such, I submit, is not the law in Indiana, nor should it be. The case relied upon in the majority opinion, Booher v. State (1926), 198 Ind. 315, 153 N. E. 497, was a prosecution for a conspiracy to transport liquor in an automobile, it is not in point, nor applicable here, for the reason that it dealt with a conspiracy and a different rule of law would apply.
The judgment of the trial court should be reversed with instructions to sustain appellant’s motion to quash the indictment and each count thereof.
Note. — Reported in 166 N. E. 2d 171.