On Rehearing.
FOURNET, Chief Justice.The bill of information charging the defendant, Lilly Christine, with obscenity, in violation of paragraph (3) of R.S. 14--.106,1 *287having been quashed by the trial judge on the. ground the statute is unconstitutional, the state has appealed.2
The trial judge, in quashing the bill of information, gives, in an able and well-considered opinion, an exhaustive analysis of the jurisprudence of this Court on the subject matter; and, in concluding that the phrase “Performance * * * of any act óf lewdness and 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 R.S. 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 acf (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 assaulf (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 declared the statute unconstitutional for the reasons therein cited;” but when “the legislature particularized the ‘lewd/ ‘lascivious/ or ‘indecent’ conduct it intended to reach in adopting the statute, the court held the statute constitutional. State v. Rose, 147 La. 243, 84 So. 643, ‘lewd dancing’; State v. Saibold, 213 La. 415, 34 So. 2d 909, 'lewd or lascivious act with the intention of arousing or gratifying the sexual desires, etc.’; State v. Roth, 226 La. 1, 74 So.2d 392, 'sexually indecent’.’’
Counsel for the state, in their original brief, did not challenge this jurisprudence, and concede that the decision in this' case depends entirely on whether the performance of an “act of lewdness or indecency” is sufficiently descriptive to (1) inform the *289accused with exactness the charge against her, and (2) give her an opportunity to properly defend herself, but contend that a “lewd performance” is the same as “lewd dancing” — 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.
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 construction of 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.
“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, quoted with approval in Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 128, 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 *291differ as to its application violates the first essential of due process of law.” 269 U.S. at page 391, 46 S.Ct. at page 127, 70 L.Ed. at page 328. And, as stated in a familar quotation from the reports of the United States Supreme Court, “Every man should he 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, 565 and 566.
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 docs 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 not 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, supra (147 La. 243, 84 So. 643, 646, a case 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 langxxage was too vague and indefinite to inform the party accxxsed ‘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 descx-iptive 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 maintaining of a place * * * for any * * * immoral purpose" to be unconstitutional for vagueness and indefiniteness), these two cases (City of *293Shreveport v. Wilson and State v. 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 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.” 211 La. at pages 199-200, 29 So.2d at page 765; 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 ruling 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, of any child under the age of seventeen to: * * * Perform any immoral act” was unconstitutional by reason of the vagueness and indefiniteness of the phrase “immoral act.” (Emphasis supplied.)
It is apt to observe here that following the rationale of these two decisions, and within a year of the latter, in State v. Kraft, 214 La. 351, 37 So.2d 815, 816, the second paragraph of R.S. 14:106, formerly Article 106 of the Louisiana Criminal Code, as originally written, defining obscenity as “Production, sale, exhibition, possession with the intent to display, or advertisement of any indecent print, picture, written composition, model or instrument,” was declared unconstitutional for the reason that the word “indecent” was too broad and indefinite to inform anyone as to whether his conduct would constitute a violation of the statute. This opinion was handed down by a unanimous court and therein the late Chief Justice O’Niell, the author, relying on the Truby case and its affirmation in State v. Vallery, supra, *295to support his conclusion, commented: “A review of the earlier decisions on this subject is given in State v. Truby, supra, and need not be repeated here. It is sufficient to say that a criminal statute, in order to be valid and enforceable, must define the offense so specifically or accurately that any reader having ordinary intelligence will know when or whether his conduct is on the one side or the other side of the border line between that which is and that which is not denounced as an offense against the law.” 3 214 La. at page 356, 37 So.2d at page 817.
We are constrained to hold, as did the court in State v. Truby, supra, that the decision of this court in the case of State v. Rose, supra, is not controlling here. The phrase “lewd performance” is just as vague and indefinite as “the performance of any act of lewdness or indecency,” or of “a lewd and indecent act,” the last having been held to be too vague and indefinite to inform the party accused of the nature and cause of the accusation against him in the case of City of Shreveport v. Wilson, supra. See State v. Rose, 147 La. 243, at page 252, 84 So. 643, at page 646.
Clearly, therefore, the trial judge, being bound by the judicial pronouncements of this court,-was without choice to pursue any other course than the one he adopted; and unless we are prepared to overrule this jurisprudence, we cannot accede to the suggestion of counsel for the state in their supplemental brief that we follow the reasoning of the Supreme Court of Georgia in the case of Fowler v. State, 189 Ga. 733, 8 S.E.2d 77. For 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 case of State v. Vallery, supra, 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.” 212 La. at page 1100, 34 So.2d at page 331, See *297•also State v. Smith, 30 La.Ann. 846, and State v. Gaster, 45 La.Ann. 636, 12 So. 739.
And whatever merit there might be in language lifted from the decision of the United States Supreme Court in the case of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, were this an original proposition, can afford the state little consolation in view of our jurisprudence that has been settled for many years, as reflected by the positive pronouncements in the decisions above discussed.
For the reasons assigned, the judgment appealed from is affirmed.
McCALEB, J., concurs with written reasons. HAMITER and HAMLIN, JJ., dissent with written reasons. HAWTHORNE, J., dissents.. R.S. 14:106, formerly Article 106 of the Louisiana Criminal Code, declares that
“Obscenity is the intentional:
“ (1) Exposure of one’s person in a public place in such manner that any part óf a sex organ may be seen by another person; or
“(2) Production, sale, exhibition, possession with intention to display, exhibit, or sell, or the advertisement of, any obscene, lewd, lascivious, filthy, or sexually indecent print, picture, motion picture, written composition, model, instrument, contrivance or thing of whatsoever description; or
“(3) Performance by any person, or the showing or display of any picture or motion picture, in any public place or in any public manner, of any act of lewdness or indecency, grossly scandalous and tending to debauch the morals and manners of the people; or
“(4) Solicitation or attempt to entice another, in any public place or in any public manner, to commit any act of lewdness or indecency, grossly scandalous and tending to debauch the morals and manners of the people; or
“(5) Solicitation or attempt to entice another person to commit any public act of lowdness or indecency, grossly scandalous and tending to debauch the morals and manners of the people.
“Whoever commits the crime of obscenity shall be fined not more than two thousand dollars, or imprisoned for not more than five years at hard labor, or both.” (As amended, Acts 1958, No. 388, See. 1) (Emphasis supplied)
*287Under the italicized portion of the said paragraph (3) of this Statute, it was charged that the accused, “while in a public place and in a public manner,” did “wilfully, unlawfully and intentionally perform an act of lewd and indecent dancing, grossly scandalous, and tending to debauch the morals and manners of the people.”
. The accused filed a supplemental motion to quash in which, it was contended the Legislature, in adopting Act No. 388 of 1958 amending R.S. 14:106 by increasing the penalty, without the inclusion of a saving clause, automatically granted her a legislative pardon — otherwise, it would be an ex post facto law, violative of section 15 of Article IV of the Louisiana Constitution of 1921 and Clause 1 of Section 10 of Article I of the Constitution of the United States, since the act with which she is charged was committed on July 16, 1958, and the effective date of the repealing statute was July 30, 1958. Although the trial judge overruled this motion, in view of the conclusion we reach on the original motion, we express no opinion with respect to the correctness of his ruling on this supplemental motion.
.. The Legislature, by Act 314 of 1950, amended and rewrote the paragraph and inserted the word “sexually” before the words “indecent print;” and this was held to be sufficient in State v. Roth, 226 La. 1, 72 So.2d 392.