Dillard v. State

*McCAY, J.

There was no indictment in this case. The defendant, rather than await his tidal before the Superior Court, waived indictment, and even a written accusation, and demanding a jury, was tried under the Act of 1868, on the proof. His only ground of defense is that the words proven are not obscene and vulgar words, in the sense of section 4306 of the Code.

We cannot think that the Legislature was aiming solely at the words, without reference to the thoughts or idea the words are intended to convey. There is not a single word in the language, however coarse, low or vulgar, that may not be and is not often used to convey proper and decent ideas, and it is a mawkish and really an indelicate and immodest sensitiveness that blushes at a word which may be used obscenely, but which the occasion and the context shows not to be so used. Words get their point and meaning almost entirely from the time, place, circumstances and intent with which they are used, and it seems to us a very-unfair interpretation of this clause of the Code to say, that it is directed simply against the use of certain words which are by common consent banished from decent society. If there are any such words in our language they are very few, and as we have said, even they are only obscene and vulgar accordingly as they convey obscene and vulgar ideas. .

This statute does not stand upon the footing of statutes against public indecency. Its object is not to keep pure the public morals. It is to be found in that chapter of the Code which punishes private wrongs, and forms a part of the same clause which makes it a penal offence to use opprobrious and abusive language to another. It is intended to protect females from insult; to furnish to the friends of a female whose modestv has been unlawfully shocked, or whose feelings have been wounded, by the use in her presence of obscene and vulgar language, some other remedy than that which nature dictates, to-wit, club law. And the statute is to be construed and understood in the light of its object. *What higher insult to a virtuous woman can be conceived of than the language used in this case?

It is in our judgment not only obscene and vulgar in the idea which it conveys and in the insult which it -includes, but, we must' say, that the very terms used are obscene and vulgar. It is not even wrapped up in decent words. It would be a course and vulgar phrase among vicious and vulgar people. It is not only obscene and vulgar in the thought it suggests, but it is obscene and vulgar in the words to suggest them.

We think Justice Young was right, and we affirm the judgment of Judge Andrews in refusing to sustain the certiorari.