171 Ky. 521 | Ky. Ct. App. | 1916
Opinion of the Court by
Affirming.
This prosecution against H. B. Calloway, manager of the Columbia Picture Show Company, in Frankfort, was begun by a warrant issued from the police court of the
The pictures complained of consist of six pictures, eleven by fourteen inches in size, and two larger pictures, sixteen by twenty-three inches in size, all illustrating the story of “Undine.” The pictures are entitled, “Miss Ida Schnall;” “Miss Ida Schnall as Undine;” “Undine and the Water Nymphs;” “The wound proves fatal;” “The Knight meets Undine;” “The fisherman’s child strays away from home and meets the Nymphs;” “The Water Nymphs rest after a day’s frolic,” and “Huldbrand declares his love for Undine.”
In 29 Cyc. 1319, the rule as to what constitutes ob- . seenity or indecency in publications is stated as follows:
“The test which determines the obscenity or indecency of a publication is the tendency of the matter to deprave and corrupt the morals of those whose minds are open to such influences, and into whose hands such a publication may fall. The question does not depend upon its being true or false. So, a proper test of ob- ; seenity in a painting or statute is whether its motive, .¿is Indicated by it, is pure or impure, whether it is calculated to excite in a spectator impure imaginations, and ; whether the other incidents and qualities, however attractive, are merely accessory to this as the primary or ,main purpose of the representation.”
The only witnesses called were B. G. Williams and 'Guy II. Briggs, who testified that the pictures introduced in evidence, as above described, were, in their opinions, neither obscene nor indecent. This testimony and the pictures constituted all the proof heard in the case.
The findings in a prosecution tried by the court will be given the same weight as is attached to the verdict of a jury. Klyman v. Commonwealth, 30 S. W. 658. And, the judgment must be palpably against the evidence or
Here there was ample evidence to sustain the judgment. The right of the Commonwealth to prosecute this appeal, is not decided.
Judgment affirmed.