200 Mass. 346 | Mass. | 1909
This is an indictment under R. L. c. 212, § 20, charging the defendant with selling “ a certain printed book ” which contained “ certain obscene, indecent and impure language, and manifestly tending to the corruption of the morals of youth.” The case is before us upon the defendant’s exceptions to the overruling of the motion to quash” the indictment and to the refusal of the judge to give certain rulings requested at the trial. It is stated in the defendant’s brief that the questions raised in the motion to quash, so far as now relied upon, are covered in his request for rulings. We therefore shall consider that motion no further, but shall pass at once to the questions of law which
There were twenty-six requests, none of which was given in the language asked for, although the law contained in some of them, so far as material to the case, was adopted by the judge in his charge. It seems best to treat the question in a topical way rather than to speak of the requests individually. This is substantially the way in which the questions are discussed upon the defendant’s brief.
The defendant strongly contends that the judge should have defined at greater length than he did the terms “ obscene,” “ indecent,” “ impure ” and “ manifestly.” While it is true perhaps that by illustration or the use of synonyms the judge might have explained more fully the meaning of these terms, still it is to be remembered that they are not technical terms. They are common words and may be assumed to be understood in their common meaning by an ordinary jury. So far as the judge undertook to define we see no error, and we cannot say as matter of law that his failure to define more at length was erroneous in law or prejudicial to the defendant.
It is strongly contended by the defendant that the language complained of is neither obscene nor indecent nor impure, and that it does not manifestly tend to the corruption of the morals of youth; and in support of his contention the following language is used in his brief :
“ The language of those parts of the book specified in the indictment is neither impure nor indecent within the meaning of the statute. Ho word, sentence or paragraph can be pointed out which can be described by either of these terms. If the statute is to be construed to cover all language which conveys or suggests thoughts of sexual relations, or even illicit intercourse, it will certainly include a great part of what is considered good and decent literature. Indecent and impure language cannot be such as is widely read and openly discussed. The very terms themselves import that matters thus described cannot be openly read or decently discussed; yet it is submitted that the book in question can be widely and openly read and discussed without causing general corruption of morals or denoting general depravity.
*353 “ The language referred to does not manifestly tend to the corruption of youth. It is not sufficient, under this clause of the statute that the language be such as might tend to corrupt the thoughts of the young. It must obviously and incontrovertibly have that tendency. If there is any room for doubt upon that point the statute does not apply. The language of this book is not such that it can properly be said ‘ manifestly ’ to tend to corrupt or deprave.”
But we think that the case was properly submitted to the jury. It could not be ruled as matter of law that the jury could not find the book within the prohibition of the statute. In prosecutions like this, considerations similar to those thus urged in this case are frequently, if not usually presented, in behalf of the defendant, and they are entitled to consideration. But after all there is a practical side. Doubtless an artist, when looking in his studio upon the model before him, in the figure of a perfectly formed young woman standing completely nude, may be so much under the influence of the aesthetic principles of his profession, and so intent in his wish to copy with perfect exactness the living picture, as not to have one obscene, indecent or impure thought or the slightest sexual desire, but on the contrary he may be perfectly absorbed in the purest feeling of admiration and wonder at the artistic beauty of the creation before him. But it by no means follows that if he should open wide the doors of his studio and fill it with people from the crowded streets, they would be moved by the same lofty and pure feelings. And in passing upon the question whether such an exhibition was obscene or tended to corrupt the morals of youth, a jury would not be justified in considering only the feeling of the artist. They should consider that not every person is so much absorbed in the artistic features, and that the exhibition of such a model may rather arouse in many spectators passions of a merely animal nature.
And so a reader may be so interested in the development of the character of a woman — no matter how wanton — as a merely psychic study, as to read such a book as this without a single impure or unworthy thought. And it may be that the author of this book was in full sympathy with such a state of mind when she wrote it and sent it forth to the reading
The twenty-sixth request was properly refused; and the language of the charge sufficiently and accurately stated the law on the subject matter of this request. Although the twenty-first, twenty-second and twenty-third rulings were not given in their precise language, yet their subject was sufficiently treated in the charge. We see no error in the manner in which the court dealt with any of the requests.
Exceptions overruled.