(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, 145 La. 906, 83 So. 186); ‘perform any immoral act’ (State v. Vallery, 212 La. 1095, 34 So.2d 329); 'immoral purpose’ (State v. Truby, 211 La. 178, 29 So.2d 758); 'indecent print, etc.’ (State v. Kraft, 214 La. 351, 37 So.2d 815; ‘indecent assault’ (State v. Comeaux, 131 La. 930, 60 So. 620), without further qualification, explanation, or limitation as to what particular lewd, immoral, or indecent conduct the legislature sought to punish as a crime, the court de*279dared the statute unconstitutional for the reasons therein cited.”
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, 147 La. 243, 84 So. 643, to be sufficiently descriptive to meet the test of constitutionality, since the word “performance” includes “dancing” as well as all other types of entertainment, and the state has been sustained in this contention by the majority. (Emphasis supplied.)
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, 30 La.Ann. 846; State v. Peters, 37 La. Ann. 730; State v. Gaster, 45 La.Ann. 636, 12 So. 739; State v. Breffeihl, 130 La. 904, 58 So. 763, 40 L.R.A.,N.S., 535; State v. Palanque, 133 La. 36, 62 So. 224; State v. Gardner, 151 La. 874, 92 So. 368; State v. Brunson, 162 La. 902, 111 So. 321, 50 A.L. R. 1531; State v. Terrill, 169 La. 144, 124 So. 673; State v. Williams, 173 La. 1, 136 So. 68; State v. Rodosta, 173 La. 623, 138 So. 124; State v. Hebert, 179 La. 190, 153 So. 688; State v. Reed, 188 La. 402, 177 So. 252; State v. Smith, 194 La. 1015, 195 So. 523; State v. Gehlbach, 205 La. 340, 17 So.2d 349; State v. Vallery, 212 La. 1095, 34 So.2d 329; State v. Kraft, 214 La. 351, 37 So.2d 815; State v. Penniman, 224 La. 95, 68 So.2d 770; State v. Arkansas Louisiana Gas Co., 227 La. 179, 78 So.2d 825; State v. Viator, 229 La. 882, 87 So.2d 115, and the authorities therein cited.
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., 34 App.D.C. 592, 19 Ann.Cas. 68, *281quoted with approval in Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 127, 70 L.Ed. 322, where it was further pointed out that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” And, as stated in a familiar quotation from the reports of the United States Supreme Court, “Every man should be able to know with certainty when he is committing a crime. * * * It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large.” United States v. Reese, 92 U.S. 214, 23 L.Ed. 563. (Emphasis supplied.)
This court, in the early case of State v. Comeaux, 131 La. 930, 60 So. 620, held Act 202 of 1912, seeking to define and punish indecent assaults, to be unconstitutional for the reason that “the act does not say what shall constitute an indecent assault, and the court is without authority to determine this matter,” and, following this same principle in a later case (City of Shreveport v. Wilson, 145 La. 906, 83 So. 186, 187), reversed the conviction and sentence of the defendants, charged with violation of an ordinance of Shreveport that made it unlawful to use any hotel, house, apartment, etc., “for the purpose of prostitution or assignation or other lewd or indecent act,” holding that concubinage (which the facts revealed the defendants were practicing) “is neither prostitution nor assignation, within the accepted meaning of the words,” and the words “ ‘or other lewd or indecent act,’ * * * add nothing to the ordinance.” Or, as stated by the author of the Wilson opinion (the late Chief Justice Charles A. O’Niell), when writing the court’s decision in the Rose case [147 La. 243, 84 So. 646] (on which the state strongly relies). “The ruling was that concubinage was not prostitution or assignation, within the ordinary meaning of the words, and that, in so far as the statute undertook to punish for any 'other lewd or indecent act,’ the language was too vague and indefinite to inform the party accused ‘of the nature and cause of the accusation against him.’ ” In differentiating the holding in the Wilson case from the holding in the Rose case, the court concluded the phrase “lewd dancing” was sufficiently descriptive for the reason that the adjective “lewd,” though susceptible of more than one definition or meaning, ceased to be ambiguous when taken in its context as a modifier of “dancing,” a noun having a specific, fixed, and well accepted meaning. (Emphasis supplied.)
In State v. Truby, 211 La. 178, 29 So.2d 758, 759, (where we held Article 104 of the Criminal Code defining the crime of keeping a disorderly place as “the intentional *283maintaining of a place * * * for any * * * immoral purpose” to be unconstitutional for vagueness and indefiniteness), these two cases (the Wilson and the Rose) were again differentiated by the author,, Mr. Justice Hawthorne, in clear language and lucid reasoning, thusly: “ * * * when called upon to find the meaning of the words ‘lewd or indecent act’ in City of Shreveport v. Wilson, the court was confronted with the problem of construing the adjectives ‘lewd’ and ‘indecent,’ which may have more than one meaning, and the noun ‘act,’ which is also susceptible of more than one definition. Consequently, the phrase ‘lewd or indecent act’ was held to be too vague and indefinite to define a crime with any certainty.” Continuing, the author aptly observed: “ * * * the case of City of Shreveport v. Wilson is more nearly applicable to the case here under consideration than is State v. Rose, because the phrase which must be construed is ‘immoral purpose,’ and not some ‘immoral’ thing which has a specific and fixed meaning,” pointing out that when, in State v. Rose, “the court was called upon to find the meaning of the phrase ‘lewd dancing,’ it had for its consideration a noun, ‘dancing,’ which has a specific, fixed, and well accepted meaning, and found that the adjective ‘lewd,’ when taken in its context as a modifier of ‘dancing,’ ceased to be ambiguous, and that therefore the phrase ‘lewd dancing’ was sufficiently definite to charge a crime.” (Emphasis supplied.)
In State v. Vallery, 212 La. 1095, 34 So. 2d 329, 330, presented for our determination just one year later, we were requested to reconsider our decision in the Truby case, but, in a unanimous decision, we refused to do so, holding instead that a statute defining the crime of contribution to the delinquency of a juvenile as “the intentional enticing, aiding, or permitting, by any one over the age of seventeen, or any child under the age of seventeen to: * * * Perform any immoral act,” Cr. Code. art. 92, subd. 7, was unconstitutional by reason of the vagueness and indefiniteness of the phrase ‘‘immoral act." (Emphasis supplied.)
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 *285case, where “immoral purpose” were all held to be too vague and indefinite to define a crime, are more comparable to “Performance * * * of any act of lewdness or indecency,” the language used in defining the crime of obscenity with which we are concerned in the instant case. (Emphasis supplied.)
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, 30 La.Ann. 846, and State v. Gaster, 45 La.Ann. 636, 12 So. 739.
I therefore respectfully dissent.