Jennings v. State

16 Ind. 335, 1861 Ind. LEXIS 168

• Court: Indiana Supreme Court
• Decided: June 8, 1861
• Status: Published

Opinion

Worden, J.

Information against the appellant for public indecency. Motion to quash overruled: trial; conviction, and judgment.

The principal point relied upon for a reversal is, that there is no such offense. The facts charged do not constitute a criminal offense, unless they are made such by the words public indecency,” as used in 2 R. S. 1852, § 22, p. 433. The provision is as follows: “Every person who shall be guilty of notorious lewdness, or other public indecency, upon conviction shall be fined not exceeding one hundred dollars, and imprisoned not exceeding three months.”

Another statute enacts, that “crimes and misdemeanors shall be defined, and punishment therefor fixed, by statutes of this State, and not otherwise. 1 E. S. 1852, § 2, p. 352. ■ In the case of Hackney v. The State, 8 Ind. 494, which was a prosecution for a nuisance, it was held that unless the Legislature had, by some general or particular definition, declared what shall constitute a nuisance, so as to embrace the offense therein charged, and prescribed the punishment therefor, there can not now be any such offense. The phrase “ public indecency ” is, in itself, certainly no more descriptive of an offense than the terms “ common nuisance.” There is no statute that we are aware of, which in any manner defines the offense of public indecency. The elements, or acts, which constitute the offense are no where enumerated. “ The term has no fixed legal meaning; is vague and indefinite, and can not in itself imply a definite offense.” McJunkins v. The State, 10 Ind. 140. Without a definition of the offense, the acts which constitute it must vary with the different phases of society; depending upon the fastidious, refined, or primitive views of the community in which they happen to be committed.

John Green and J. A. Lewis, for the appellant. J. E. McDonald, Attorney-General,.and A. L. Roache, for the State.

Acts which in one place might be regarded as amounting to public indecency, might in another be considered harmless, and even proper. Perhaps the phrase “ notorious lewdness,” as used in the statute, is sufficiently descriptive of that offense, but that is not the offense charged here.

We are of opinion that for want of a proper definition, no act is made criminal by the terms “ public indecency,” employed in the statute.

Per Guriam.

The judgment is reversed, and the cause remanded.