The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-05-16
OPINION OF THE COURT BY WHIT
ING, ].

The defendant was charged with
using vulgar and obscene language in
a public place in Honolulu, ETC., and
appeals to this Court on the following
points of law certified by the District
Magistrate:
1. That the finding and conviction OF
the District Court in the above case is
contrary to law.
2 That the place where the alleged
language was used is not public place
within the meaning of Chap. LXI. OF
the Session Laws of 1892.
9. That the alleged language is not
vulgar, profane and obscene language,
and the use of language as proved does
not constitute an offense under the pro-
visions of the said Chap. LXI. of the
Session Laws of 1892.
f. The Court had no jurisdiction I'M
der the evidence given to make the said
conviction, as no offense is proven.
The offense charged is under the
provisions Of Chap. ca, Laws 1892,
amending Sec. 8, Chap. "a of the Penal
Code land not Chap. LXI., Laws 1892,
as set forth in defendants points on
appeal, probably a clerical error.
1T shall be unlawful for any person
to use vulgar, prOfane or obscene Ian
guage in any street, highway, store,
shop. or. other public place, or place of
public resort"
The defendant claims that no offense
was committed because % the langu-
age used was not "profane," vulgar
nor obscene and (2) because the
place where the language was used was
not a public place" nor any other of
the places named within the meaning
of the statute.
We have no hesitation in declaring
that the language used by defendant
was at least in part profane and in
part obscene, and comes within the
well known definitions. Shields v.
State, 80 Ga. $40 DC S. E. Rep. So; U.
S. V. Bennett, 16 Blatch. 338 (12 Myers
Fed Dec. 24S7).
1t is not necessary however nor prop
er to set forth such language in this
decision.
The Public Place.
Defendant was on the veranda of his
own house at KamoiIiili, in Honolulu,
on the outskirts of the city on the new
road cut in the McCully premises from
Beretania to King street; the house is
situated short distance az to 25 feet
from the public street; the prosecuting
witnesses house is next to defendants
and separated by fence; seven o'clock
in the evening was the time when the
language was used; several people were
present, but they lived there either at
defendants or at prosecuting witnesses
house, or next door; several people
were passing on the street.
By the statute many acts have been
declared "offenses" when done or COM
mitted in public or in a public
place" or ''place of public resort" and
the meaning of such words has been
constued from the nature of the act
and the mischief to be remedied taken
with the locality and it's accessibility
to the public or people in general, as
in ARRAYS 'intoxication," indecent
exposure gaming" ''profane ours
ing" using profane and obscene Ian
guage."
The term public place" is relative
one: what is public place for one pur-
pose is not for another.
10 Am. & Eng. Encyc. of Law, 563.
'IntogicatiOn." State V. Sewers, So
Ind. 81. State V. Stevens, SO N. H. 50.
''Afrdys" Rex V. Hunt, 1 Cox CIR.
CIR. Cases, TT.
10 So. Rep. 934.
gous as the cases of the exposure of the
person, indecent exposure" In such
cases. it is not necessary that the place
be one where the public have an in
discriminate right of access; it need
not be open to the general public, be-
cause place which will ordinarily be
deemed private may, by virtue of the
circumstances under which the expos
ure is made, come within the meaning
of the term. The act itself being one
against decency and affecting good
morals has great effect in determining
whether the place is a public place,
and although it might be done on ones
private premises or in ones private
yard, yet If in view of the people pass
ing or in view of neigbors' windows or
at window of ones own house in sight
OF passers by, it is done in a public
place.
The place is a public one if the ex-
posture is such that it is likely to be
seen by number of casual observers.
Van Houten V. State, 46 NJ. Law. 16.
Am. & Eng. Encyc of Law. 534.
The object and intent of this statute
forbidding the use of obscene language
is the same as that of the stat
utes against indecent exposure, and
both are for the protection of de-
cency and good morals. To say
that person may stand within the
boundaries of his own private premises
on public street and make use of OBJ
scene language or expose indecently
his person in such a situation that
passers by on the public road might in
the first instance hear and in the Sec
ond see, and yet not be guilty on the
ground that the place is not a public
one within the strict letter of the sta
tute, would destroy the true intent of
the Act.