People v. Tylkoff, 212 N.Y. 197 (1914)

The utterance of vulgar and offensive language in a public place, without legitimate purpose, can constitute an act that openly outrages public decency under Penal Law § 43, even if the language could also be considered slanderous.

Summary

The defendant was convicted of violating Penal Law § 43 for using indecent language about a woman at a public meeting during a strike. The Court of Appeals reversed the conviction due to an error in the trial judge’s instructions but addressed whether the indictment properly charged an offense. The court held that while the word “act” in the statute could encompass conduct consisting of words, the primary purpose of the statute was to punish public indecency, not slander. Therefore, using vulgar language publicly, without a valid purpose, can be deemed a violation of public decency, irrespective of whether it also constitutes slander.

Facts

A strike was ongoing at or near Mineville, New York, and public meetings were held in Heath’s Hall. The defendant, a strike leader, allegedly said of Marta Barkowska, who was encouraging workers to return to work, “she is a whore” at one of these meetings, in the presence of many people.

Procedural History

The defendant was indicted and convicted under Penal Law § 43. He appealed, challenging the sufficiency of the indictment. The Appellate Division affirmed the conviction. The Court of Appeals initially overruled a demurrer, then reversed the conviction due to an error in the trial judge’s charge.

Issue(s)

Whether the word “act” in Penal Law § 43, which prohibits acts that openly outrage public decency, includes conduct primarily consisting of spoken words.

Holding

Yes, because the statute’s purpose is to punish public indecency, and conduct composed of words can be just as indecent and offensive as physical acts, especially when uttered publicly and without legitimate purpose.

Court’s Reasoning

The court reasoned that Penal Law § 21 requires construing statutory words according to their fair import. Unless otherwise restricted, the word “act” is broad enough to include uttering foul and indecent language in a public gathering. The court refuted the argument that this construction would improperly criminalize slander, stating: “The purpose of the statute is not to punish slander but to punish public indecency, and it requires no argument to demonstrate that language which is intensely slanderous may not be indecent at all, and, conversely, that language which is just as indecent as possible may not involve any element of slander.” The court further noted that the determination of indecency should be tested by the prevailing common judgment and moral sense of the community, and may be influenced by the circumstances under which the act occurs. The court acknowledged that determining indecency in words is no more difficult than determining negligence in an act. Judge Hiscock dissented, arguing for a new trial based on the admission of evidence. “It seems to me quite immaterial whether a person, for instance, is guilty of vulgar and offensive actions and physical display or whether he describes such things by vile and expressive language. The statute is in the interest of decent conduct and for the protection of well-behaved people from the offensive conduct of others and it ought to receive a liberal application.”