The opinion
McCALEB, Justice
(concurring).
In subscribing to the majority ruling on. the original hearing I stated in a separate opinion that the crime of obscenity, as applied to this case, had been adequately defined by the Legislature in R.S. 14:106(3) because the statutory descriptive words “lewdness or indecency” were used in association with the noun “performance” thereby signifying the prohibition of a lewd or indecent public performance or entertainment — a well defined and certain type of act within the rulings in State v. Rose, 147 La. 243 , 84 So. 643 , “lewd dancing” and State v. Saibold, 213 La. 415 , 34 So. 2d 909 , 910 “lewd or lascivious act * * * with the intention of arousing or gratifying the sexual desires, * * * ”.
After further consideration, I am convinced that this view and that of the majority of the court on original hearing was not well founded.
The error I now perceive concerns the meaning of the word “performance” as used • in the statute. By transposing the noun “performance” as the object of lewdness and indecency so as to make it synonymous with public entertainment or public show, the conclusion was drawn that the conduct the Legislature intended to reach was lewd and indecent public performances or shows. But this was inaccurate because the noun “performance” is. not used in the statute as a noun but as the verb “to do” (see State v. Wooderson, 213 La. 40 , 34 So.2d 369 ) and the provision, when properly interpreted, simply defines obscenity as the performance or doing in public of a lewd or indecent act.
When thus viewed, it is seen that the statute fails to apprise an accused with any degree of definiteness of the nature of the conduct prohibited and, therefore, it falls in the same category as the statutes which have been heretofore stricken with nullity by this Court in State v. Comeaux, 131 La. 930 , 60 So. 620 “indecent assault”; City of Shreveport v. Wilson, 145 La. 906 , 83 So. 186, 187 , “lewd or indecent acts”; State v. Truby, 211 La. 178 , 29 So.2d 758 “immoral purpose”; State v. Vallery, 212 La. 1095 , 34 So.2d 329, 330 , “perform an immoral act” and State v. Kraft, 214 La. 351 , 37 So.2d 815 “indecent print, etc.”
For these reasons and those expressed in the majority opinion, I respectfully concur.