People v. Whitman

The information charged that the defendant committed the offense of annoying and interfering with a person by offensive and disorderly acts and language, in violation of said section, by maliciously, willfully, wrongfully', and unlawfully calling the informant and informant’s wife vile, indecent, offensive, and opprobrious names. In support of said information the deposition of said informant was taken before said justice, -and it is- alleged therein that on December 3, 1915, while he was in his yard with his wife and his children, and within the hearing of other persons, the defendant made use of the language complained of, addressed to him and his wife, in a loud and boisterous tone, so that persons passing along the street could hear it, and that he was annoyed thereby.

Upon the trial the complainant Nelson H. Ashdown, and his wife, Lottie Ashdown, Eugene R. Bassett, and his wife, Beatrice Bassett, testified in substance: That the defendants lived in a house adjoining that of the-complainant on Raynor avenue, a public street in the village of Freeport. That on December 3, 1915, about 6:30 a. m. the complainant was sifting ashes in his back yard. The defendant was standing in her lobby doorway, and in a loud tone of voice addressed the following language to- the complainant’s wife:

“You black, lying bastard. Look out-! you’ll pick up some dead bones. You have children buried in the back yard. You’re a black bastard, and I can prove it. You old whore. You bitch. You throw your belly up to niggers, and then have to turn it up to a bastard.”

These witnesses testified to the use of further obscene and abusive language on the part of the defendant, and that it was heard by them while they were standing in the complainant’s yard. Oliver Golden, a witness called for the prosecution, testified that at the time in question he was .about 125 feet away from defendant’s back door, in his own chicken yard, and that he heard the defendant’s voice; that he could not tell what her words were, but that she was talking in a loud tone. . The .complainant and his wife testified that they were annoyed by said language. The defendant and her husband, Jarvis H. Whitman, took the stand and denied that the defendant spoke any of -the words testified to by the' witnesses for the prosecution, and further testified that the defendant did not say anything at all to the complainant or his wife. This issue of-fact as to what took place was decided by .the justice in favor .ofi the prosecution, and the évidence is' sufficient tó sustain his finding.

The question to be determined is whether the use of said language by the defendant at the place and in the manner alleged in the information and proved at the trial constitutes a violation of said section. The section reads as follows:.

“Any person wh<yshall-by,any offensive or disorderly act or language, annoy or interfere with any person in any place or with the passengers of any public stage,, railroad car, ferry .boat, or other public conveyance, or -who-•shall disturb or offend' the- occupants of such- stage, car,- boat or conveyance, by any disorderly act, language or display, although such, act, conduct or display-may--not amount to an assault or-battery,-shall be deemed guilty óf a -misdemeanor.” Penal Law,'§ 720. '

[1] 1. The word “offensive” has been defined as “serving, adapted, or intended to give offense, displeasing, annoying.” Funk & Wagnalls New Standard Dictionary, 1913. The word “offense” is defined as: “That which injures or wounds the feelings or causes displeasure, affront, or anger.” Id. It cannot be questioned but that the language addressed to the complainant’s wife by the defendant was offensive within the meaning of the above definitions. In a broad sense such language would constitute a gross violation of the ordinary rules of propriety, good neighborhood, and good manners; and if spoken loud enough to be heard by the public must be considered as an offense against public order and decency. The use of such language at a time and place when it can be heard by other persons than the one addressed has a tendency to be injurious to the public by reason of the vile and obscene import of the words. Certain it is that, no matter how viewed, the use of such words must be offensive to the person attacked.

[2] 2. The complainant testified that he was annoyed by said words, and that he was so annoyed is included as a determination of fact in the judgment of conviction rendered by the justice. It would need nothing further than the mere statement of the complainant that he was annoyed at such language to convince anybody that such was the fact.

[3] 3. If the words of the section were to be taken literally, no further discussion would be necessary. The words employed are, “in any place,” and are sufficiently broad to take in the back stoops and back yards of the premises in question. If it were not for the 'statement contained in the opinion construing said section in the case of People v. St. Clair, 90 App. Div. 239 , 242, 86 N. Y. Supp. 77 , viz., “The words ‘in any place’ undoubtedly have reference to a public place,” I would have no' hesitancy in holding that the words should be taken in their literal and general sense; but, under the interpretation of the said words given by the court in the above case, it will be necessary to take up the next and final inquiry.

[4] 4. Generally speaking, a public place is:

“A place openly and notoriously public; a place of common resort; a place where all persons have a right to go and be; a place which is in point of fact public, as distinguished from private; a place that is visited by many persons, and usually accessible to the neighboring public; every place which is for the time made public by the assemblage of people.” 32 Cyc. 1249.

But the inquiry still remains whether the place in question is, in contemplation of this statute, prohibiting the annoyance or interference with any person by any offensive or disorderly act- or language, a public place. There are many cases in which places not public in the sense in which the word is generally used have been construed and

“Where a man indecently exposes his person upon the roof of a house, where his act could not be seen by persons passing along the highway, but was seen by seven persons from the back windows of another house, it was held that he was rightly convicted of exposing his person in a public place.” R. v. Tallman, L. & C. 826, 9 Cox, Cr. Cases, 388. So held where the exposure was from a window to a person on the second floor of a house on the opposite side of the street. Rex v. Bouverard, cited in Reg. v. Webb, 1 Den. C. C. 338, 18 L. J. M. C. 39.

“Any ‘place’ may be made ‘public’ by a temporary assemblage (Bish. St. Crimes, 298); and this is especially so when the assemblage is gathered to witness an exhibition for hire. An indecent exhibition made by six women for money to five men present and paying therefor made the room where it occurred'a public place, within the statute punishing an indecent exposure in a public place, although it was in a room in a house of prostitution and not open' to the general public.” People v. Bixby, 67 Barb. 221 , 222; Words and Phrases, vol. 6, p. 5806.

“The fighting of two persons in the presence of seven persons constitutes an affray. The seven other, persons make the place a ‘public place,’ within the meaning of that term as used in the definition of an affray.” State v. Fritz, 133 N. C. 725 , 45 S. E. 957 , 958; Words and Phrases, vol. 6, p. 5807.

“An inclosed lot, situated 30 yards distant from the streets of a country town, but visible from the street, is a public place, within the common-law definition of an ‘affray.’ ” Carwile v. State, 35 Ala. 392 , 394; Words and Phrases, vol. 6, p. 5808.

“A place so near and so open that.persons traveling along the highway can see cards or dice playing thereat is abstractly and per se a public place.” Lee v. State, 136 Ala. 31 , 33 South. 894 .

A place is a public one if the exposure is such that it is likely to be seen by a number of casual observers. Van Houten v. State, 46 N. J. Law, 17 , 50 Am. Rep. 397 ; Hawaii v. Ben, 10 Hawaiian, 278. In Van Houten v. State, supra, where the exposure was in the yard of a house which was occupied in part by the defendant and in part by the prosecutors, and the exposure was in view of the windows of two neighboring dwelling houses, it was held that this was a public place. So also a private yard, in which the defendant might be seen from a public road where persons were passing, is a public place. Reg. v. Levasseur, 9 Seg. N. (Quebec) 386.

Bouvier defines a public place as follows:

“Any place so situated that what passes there can be seen by any considerable number of persons, if they happen to look.” Bouvier’s Law Dictionary (Rawle’s Revision) vol. 2, p. 792.

It seems to me that it would be no undue extension of the definitions and interpretations given in the above cases to hold that the place in question was within the meaning of said section a public place.

There remains to be considered the decision of the Court of Appeals in the case of People v. Tylkoff, 212 N. Y. 197 , 105 N. E. 835 , as to its bearing upon the case at bar. It was held in that case:

1. An indictment does not state a crime under Penal Law (Consol. Laws, c. 40) § 43, referring to acts openly outraging public decency, which specifies that at a public meeting the defendant spoke three Polish words meaning in English “she is a whore.”

2. Because mere slander or defamation by spoken words is, unlike libel, not indictable by common law, and has never been made a crime by express statute, Penal Law (Consol. Laws, c. 40) § 43, punishing any person who willfully and wrongfully commits any “act” which outrages public decency, is not to be construed as covering the mere utterance of defamatory language.

Judge Bartlett held that section 43 was designed to deal with acts or deeds, and not words, and that words alone could never constitute a violation of said section. Judges Chase and Miller concurred. Judge Werner wrote an opinion to the effect that words alone could constitute a violation of section 43, but did not think they did in that case, because of lack of proof to show that the Polish words spoken would violate the standard of decency of the Polish audience in question. Judge Cullen concurred. Judge Hiscock wrote an opinion holding that the words in question did constitute a violation of section 43. Judge Hogan concurred. The majority of the court held that words alone may be such as to openly outrage public decency in violation of section 43. Judge Werner said ( 212 N. Y. 202 , 105 N. E. 835 ):

“To the extent that this statute deals with acts and language so obviously offensive to the general sense of public decency that there is really no room for discussion, the courts of criminal jurisdiction will have no difficulty in applying and enforcing its provisions.”

Applying this general rule of interpretation to the case at bar, there can be no doubt but that the words used by the defendant fall under the general definition given by Judge Werner as “obviously offensive to the general sense of public decency.” Finally, Judge Bartlett, while holding that the words in the Tylkoff Case did not violate section 43, said:

“Annoying language amounting to a nuisance is dealt with elsewhere in the statute. Penal Law, § 720.”

Section 43 refers to acts alone, whereas section 720 contains the words “acts or language,” and is therefore broad enough to take in a case like the one at bar. It follows that the Tylkoff Case is in harmony with the conclusions reached in the present case.

The judgment appealed from must be affirmed. Ordered accordingly.