State v. Christine , 239 La. 259 ( 1960 )

HAMLIN, Justice.

The State of Louisiana appeals from a judgment of the trial court holding Paragraph Three of LSA-R.S.14:106¹ unconstitutional, null and void, maintaining defendant’s motions to quash and her demurrers to the bill of information filed, and discharging defendant without date.

Lilly Christine, also known as the “Cat Girl,” was charged by bill of information with a violation of LSA-R.S. 14:106(3), “Obscenity,” in that—

“ * * * on the sixteenth day of July in the year of our Lord, one thousand nine hundred and fifty-eight * * 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, y: • # ;Jí »

In her demurrers and motions to quash,² along with other legal issues, the defendant contended that Paragraph Three of LSA-R.S. 14:106, supra, under which she was charged, was unconstitutional because the terms "Performance by any person * * *, 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" were too broad and indefinite to inform the defendant of the nature of the charge against her and whether or not her conduct constituted a violation of the subsection of the statute. (Italics ours.)

In holding Paragraph Three of LSA-R.S. 14:106 unconstitutional, null, and void, the trial judge stated:

“In the case at bar, L.S.A.-R.S. 14:-106, (obscenity), Par. 3, makes it a crime to perform in any public place or in any public manner, ‘any act of lewdness or indecency’ without describing the particular type, kind, character, conduct, or purpose sought to be reached by the legislature in adopting the statute.”

Therefore, to properly determine the constitutionality vel non of Paragraph Three of LSA-R.S. 14:106, supra, we find it necessary to thoroughly and minutely analyze its context, applying our findings to the instant bill of information.³

Firstly, although elementary, we pose the question, “Is a dance a performance?”

“In a different sense, a ‘performance’ is a representation on the stage or before an audience or spectators; an exhibition of feats; any entertainment at a place of amusement.” 70 C. J.S. Performance p. 451. Cf. Remick & Co. v. American Automobile Accessories Co., D.C., 298 F. 628, 6 Cir., 5 F.2d 411; 269 U.S. 556, 46 S.Ct. 19, 70 L.Ed. 409.

“Performance” is “a formal exhibition of skill or talent, as a play, musical program, etc.; show.” Webster’s New World Dictionary of the American Language, College Edition.

“Dance” — v. t. “1. to take part in (a dance); perform (a dance).” Webster’s New World Dictionary of • the American Language, College Edition.

“Dance” — n. “1. rhythmic movement of the feet or body, ordinarily to music. 2. a particular kind of dance, as the waltz, tango, etc. 3. the art of dancing. * * * 7. rapid, lively movement.” Webster’s New World Dictionary of the American Language, College Edition.

“Dancer” — “One who dances; specif., a professional performer of dances.” Webster’s New International Dictionary, Second Edition, Unabridged.

We conclude that dancing is included within the meaning of performance; the above authorities show clearly that a performance is very well and generally understood to comprehend a dance, a song, a recitation, an act, a play, a pantomime. The question posed, supra, is answered affirmatively.

Webster’s New World Dictionary defines the adjective “Public” as follows: “of, belonging to, or concerning the people as a whole; of the community at large,” The syllabus of. Nelson v. City of Natches, 197 Miss. 26, 19 So.2d 747, correctly states:

“A ‘public place’ within municipal ordinance making it a criminal offense for any person to profanely swear or curse or use vulgar or indecent language in any public place within corporate limits, must be considered as one wherein by general invitation members of the public attend for reasons of business, entertainment, instruction or the like, and are welcome so long as they conform to what is customarily done there.”

We find, as the trial judge did in the instant case, that:

“The terms ‘public place’ and ‘public manner,’ as used in the statute 'and the bill of information, have a fixed and definite meaning, and require no further definition as to their meaning. * * * ”

Having found that a performance includes a dance, we have now to determine whether the legislature sufficiently described the kind or type of performance done in any public place or in any public manner which it intended to reprobate and punish when it employed the terms “any act of lewdness or indecency, grossly scandalous and tending to debauch the morals and manners of the people." (Italics ours.)

« * * * It 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.” State v. Kraft, 214 La. 351, 37 So.2d 815, 817.

“The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” LSA-R.S. 14:3.

City of Shreveport v. Wilson, 145 La. 906, 83 So. 186,⁴ 188, is not apposite, but therein we said:

“ * * * ‘Lewdness’ is not synonymous with ‘concubinage.’ ‘Lewd’ means lustful or lascivious. See Words and Phrases, [Lewd]. * * ”

Webster’s New World Dictionary of the American Language, College Edition, defines “Lewd” as “1. indecent; lustful; unchaste; lascivious.” It follows that “Lewdness” means “indecency; lustfulness ; unchasteness; lasciviousness.”

“ * * * It is true that the word ‘lewd’, when used alone is of a very broad scope. It is defined by Webster’s New International Dictionary as ‘lay; * * * wicked; lawless; bad; vicious; worthless; base’ but it is also defined to be ‘lustful; libidinous ; lascivious; unchaste * * *.’ And the word ‘lascivious’ is defined as ‘wanton; lewd; lustful * * * tending to produce voluptuous or lewd emotions.’ Hence, it is seen that when the term ‘lewd’ is associated with the word ‘lascivious’ it connotes actions or gestures of a lustful and lecherous nature.” State v. Saibold, 213 La. 415, 34 So.2d 909, 911.

In State v. Kraft, 214 La. 351, 37 So.2d 815, 816, we held that there was nothing in the context of the second paragraph of Article 106 of the Criminal Code to give the word “indecent” a definite meaning, and stated:

“The word ‘indecent,’ standing alone has many different meanings, according to the standard of the individual using or defining the word. In Webster’s New International Dictionary the word is defined as ‘unbecoming or unseemly’ ; ‘indecorous, as indecent haste’; ‘morally unfit to be seen or heard’; ‘offensive to modesty and delicacy, as indecent language’; ‘immodest’ ; ‘impure’; ‘gross’; ‘obscene.’ ”

We believe that the words “indecency” or “lewdness” employed in LSA-R.S. 14:106 (3) do have a definite meaning, because the “lewd or indecent act” has to be “grossly scandalous and tending to debauch the morals and manners of the people.” By being “grossly scandalous,” we take the state to mean that the moral feelings of the community have to be grossly shocked and offended.

In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498, the United States Supreme Court approved the following charge given to the jury by the trial judge:

. “The test in each case is the effect of the book, picture or publication considered as a whole, not upon any particular class, but upon all those whom it is likely to reach. In other words, you determine its impact upon the average person in the community. The books, pictures and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by present-day standards.”

We believe that the above test applies to a case such as the instant one. The word “performance” could be substituted for “books, pictures, and circulars.”

In the Roth case, supra, the Court also made the following pertinent observation:

“Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ‘ * * * [T]he Constitution does not require impossible standards’; all that is required is that the language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices * * *.’ United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark ‘ * * * boundaries sufficiently distinct for judges and juries fairly to administer the law * * That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense * * *.’ Id., 332 U.S. at page 7, 67 S.Ct. at page 1542. See also United States v. Harriss, 347 U.S. 612, 624, note 15, 74 S.Ct. 808, 815, 98 L.Ed. 989; Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367; United States v. Ragen, 314 U.S. 513, 523-524, 62 S.Ct. 374, 378, 86 L.Ed. 383; United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508; Hygrade Provision Co. v. Sherman, 266 U.S. 497, 45 S.Ct. 141, 69 L.Ed. 402; Fox v. State of Washington, 236 U.S. 273, 35 S.Ct. 383, 59 L.Ed. 573; Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232.”

We believe that the issues in the instant case have been previously determined in the case of State v. Rose, 147 La. 243, 84 So. 643, 644, wherein the indictment charged that the defendant “ * * * did then and there unlawfully keep a house of public entertainment at the municipal number 318 Dauphine street, in the city of New Orleans, in which he did then and there permit lewd dancing. * * * ” (Emphasis ours.) The statute under which that defendant was charged (Act No. 199 of 1912) defined a disorderly house as “any house of public entertainment, or a public resort. * * * also any place in which lewd dancing is permitted * * (Emphasis ours.) In affirming the conviction of the defendant, this Court said:

“Appellant concedes that the word ‘dancing’ is well understood, but he contends that the adjective ‘lewd’ has so many and diverse meanings that it does not definitely describe the kind of dancing that the statute undertakes to denounce as offensive. He reminds rls that there is hardly a word in the English language that has only one meaning. It is not in the abstract, however, that we find the exact meaning of a word, but in the context or combination of words. As counsel for appellant says, the word ‘lewd’ has no statutory definition, nor technical meaning. But it has, particularly when applied to dancing, the very well and generally understood and unmistakable meaning, indecent, lascivious, lecherous, tending to excite lustful thoughts. If all of these qualifying terms were contained in the statute, they would amount to nothing but tautology, which is no more desirable in a statute than in a newspaper write-up or elsewhere.”

The only difference between the Rose case, supra, and the instant case is that the defendant Rose was keeping a disorderly house by permitting lewd dancing, while herein the defendant is the dancer. Applying the test, yardstick, or theory — call it what one will — as applied in the Rose and Roth cases, supra, to the instant case, we find:

(1) That dancing, as stated supra, is included within the meaning of performance; a performance is very well and generally understood to include a dance, a song, a recitation, an act, a play, a pantomime, all of which could be acted or performed in a lewd and indecent manner.

(2) The words “any act of lewdness or indecency, grossly scandalous and tending to debauch the morals and manners of the people” have, particularly when applied to dancing, the very well and generally understood and unmistakable meaning, lascivious, lecherous, tending to excite lustful thoughts.

If all of the qualifying terms above enumerated were contained in LSA-R.S. 14:-106(3), they would amount to nothing but tautology or redundancy.

We conclude that the word “performance” and the words “of any act of lewdness or indecency, grossly scandalous and tending to debauch the morals and manners of the people,” as set forth in LSA-R. S. 14:106(3), clearly and immediately indicate exactly what the legislature intended.

A person accused of a criminal offense is presumed to be innocent until this presumption is overcome by the weight of the evidence. The burden is upon the State to prove, beyond a reasonable doubt, every essential element constituting the offense charged. The trial judge is vested with the discretion to determine, after hearing the evidence in the instant case and weighing the facts adduced by the evidence, whether or not the dance is lewd and indecent, grossly scandalous, and tending to debauch the morals and manners of the people.

In a supplemental demurrer and motion to quash, defendant further contended that she was entitled to a legislative pardon because Act 314 of 1950 (amending and reenacting LSA-R.S. 14:106) was amended by Act 388 of 1958, which became effective at noon, July 30, 1958. This amendment raised the maximum fine of five hundred dollars to two thousand dollars and changed the maximum imprisonment from two years to five years at hard labor. Defendant argues that the instant bill of information was filed on July 24, 1958 under the 1950 Act, and that at the time of hearing such Act was no longer in effect by virtue of the repealing clause contained in Act 388 of 1958.

We do not find that Section 2 of Act 388 of 1958, namely, “all laws or parts of laws in conflict herewith are hereby repealed,” had the effect of erasing the information filed against the defendant. No mention is made therein that prosecutions based on in-formations filed under Act 314 of 1950 should not be tried.

The general saving statute, LSA-R.S. 24:171, which recites—

“The repeal of any law shall not have the effect of releasing or extinguishing any penalty, forfeiture or liability, civil or criminal, incurred under such law unless the repealing act expressly so provides, and such law shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability,”

is regarded as being written into Act 388 of 1958, State v. Bowie, 221 La. 41, 58 So.2d 415. See, State v. Robinson, 221 La. 19, 58 So.2d 408.

We agree with the finding of the trial judge that Act 388 of 1958 does not expressly provide for the release and extinguishment of the penalty incurred under LSA-R.S. 14:106 prior to its amendment by Act 388 of 1958, and that this Act does not operate as a legislative pardon of defendant’s alleged offense. In view of this finding, defendant’s further claim that she should be discharged, because otherwise the action of the State would violate the Ex Post Facto provisions of the State and United States Constitutions, is without merit.

For the reasons assigned, the judgment of the trial court, holding Paragraph Three of LSA-R.S. 14:106 unconstitutional, null and void, maintaining defendant’s motions to quash and her demurrers to the bill of information filed, and discharging defendant without date, is reversed and set aside; and, it is now ordered that the cause be remanded for trial.

FOURNET, C. J., dissents and assigns written reasons. McCALEB, J., concurs with written reasons. SIMON, J., dissents and adopts and concurs in the dissenting views of the CHIEF JUSTICE.

1 . “Obscenity is the intentional: * * *

“(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”;

2 . In paragraph three of defendant’s supplemental motion to quash and demurrer, she averred:

“The criminal information herein is based upon L.S.A.-R.S. 14:100(3), as amended by La. Act 314 of 1950. This subsection (3) is unconstitutional in that the terms ‘ * * * Performance by any person * * *, 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; * * * ’, are too broad and indefinite to inform the defendant of the nature of the charge against her and whether or not her conduct constituted a violation of the subsection of the statute. The subsection, therefore, violates Article 1, Section 2, of the Louisiana Constitution, which provides that ‘ * * * No person shall be deprived of * * * liberty or property, except by due process of law. * * * ’ It violates Article 1, Section 9, of the Louisiana Constitution which states that the accused ‘ * * * shall have the right to defend himself * * * and, Section 10 of the same article which provides that ‘ * * * In all criminal prosecution[s], the accused shall be informed of the nature and cause of the accusation against him * * *.’ Further, the subsection for the given reasons violates the 6th and 14th Amendments of the United States Constitution, in that the accused is not ‘ * * * informed of the nature and cause of the accusation * * ’ (6th Amendment); and, the action of the State would deprive the accused of liberty and property without due process of law, and the accused would be denied the equal protection of the laws. (14th Amendment, Section 1)”

3 . “ * * * it is not in the abstract, however, that we find the exact meaning of a word, but in the context of combination of words. * * * ” State v. Rose, 147 La. 243, 84 So. 643, 646.

4 . In City of Shreveport v. Wilson, we held that Section 4,

“Be it further ordained, etc., that it shall be unlawful for any person to use or occupy any hotel, house, room or other building or place for the purpose of prostitution, assignation or other lewd or indecent'act, in. the city of Shreveport,” of an ordinance of the City of Shreveport was not applicable to an offense alleged to have been committed by the defendants. We did not pass upon the constitutionality of the ordinance. The decision plainly stated:

“The only question thus presented is whether the municipal ordinance has application to the facts stated.

“Our opinion is that the ordinance is not applicable. * * * ”